Carnemolla v Arcadia Funds Management Ltd

Court of Appeal (NSW)|2020-11-23|Before: Basten JA, Leeming JA, McCallum JA, Mr J

Solicitors: MacElbing Mednis & Associates (Appellant) McCabe Curwood (Respondent) File Number(s): 2020/133060 Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: [2020] NSWDC 108 Date of Decision: 9 April 2020 Before: Gibson DCJ File Number(s): 2017/130845

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Factual issues

On the morning of the incident, the appellant attended the Neeta City Shopping Centre in company with her mother and her brother. Once inside the Centre, they parted company. Shortly after midday, the appellant went to the women's toilet on the perimeter of the food court. The toilet was located at the end of a short corridor which included a right-angle turn. After visiting the toilet, the appellant walked down the first arm of the corridor and slipped as she was making a turn to her right. Within a minute or two of the accident, the cleaner on duty in the area contacted his immediate supervisor, Mr Mudgil, who immediately attended the scene. He asked the woman if she was okay and recorded her response in the following terms: "I was walking out from the toilets and I slipped on the water. I fell on my left knee breaking the falling by hitting my left knee which made the crack sound when it hit the terrazzo. … I have a lot of pain in my knee and that I cannot move."
In the incident report prepared by Mr Mudgil, the time of the injury was noted as 12:22pm. Mr Mudgil attended at 12:23. After noting the appellant's statement to him, Mr Mudgil continued: "I then inspected the area but was unable to locate any wet or dry contributing factors that may have been involved in Mrs Carnemolla slip and fall incident. I also looked for any skid marks but was unable to identify or locate any marks."
An ambulance was contacted at 12:26 but did not arrive until 14:30. The appellant was taken to Liverpool Hospital and underwent an operation for a displaced fracture of her left patella.
There were references in other materials to the appellant having slipped on water. These included the hospital discharge notes ("mechanical fall - slipped on water"); a report of her orthopaedic surgeon, Dr Peter Giblin [2] ("stepped onto wet ceramic tiles"), and a report by Dr Harvey ("slipped on some water on the floor"). It seems likely that the histories recorded by the medical practitioners were either derived from the hospital discharge notes or, like the hospital notes, from histories given by the appellant or her mother.

Proceedings at trial

It was an essential element of the appellant's case that the surface where she slipped was wet. It was not in dispute that the surface of the corridor where she slipped was terrazzo, nor was it in dispute that, when wet, terrazzo is slippery. Arcadia disputed her claim that she slipped in water, and, even if that were the case, relied upon evidence of a cleaning regime carried out by Asset Cleaning Services Pty Ltd under a building services agreement with Arcadia. The agreement specified: "All common areas must be patrolled to satisfy a 15 minute loop cycle monitored by an electronic system and all amenities to have 20 minute loops as well."
The evidence demonstrated that a cleaner had carried out an inspection at 12:10, that is, not more than 12 minutes before the appellant fell.
Prior to the trial, Arcadia served on the plaintiff a notice to admit facts which included the following statements, each of which was admitted: "2. That as at 29 September 2016, Asset Cleaning Services Pty Limited were required to observe a 15 minute loop cycle for all common areas; … 5. That the area where the Plaintiff fell was last monitored at 12:10pm on 29 September 2016; 6. That the area where the Plaintiff fell formed part of the common area of the Neeta City Shopping Centre …; and 7. That a 15 minute loop cycle for monitoring/inspection was an adequate system of cleaning for common areas." There was a further fact which was not admitted, but was conceded in the course of the trial, namely that the plaintiff fell at approximately 12:22pm. [3]
The incident report quoted above was only admitted late on the first day of the trial, after all the oral evidence had been taken. [4] Although the report was double-edged for the appellant, absent the report there was no direct evidence that the appellant had slipped on water. Her statement to Mr Mudgil was not repeated in her evidence at the trial. In describing the incident, she said that she came out of the toilet and then, "I felt something under my feet and I fell." [5] She was asked to expand on that statement: [6] "Q Now, you've described how you felt something under your feet and then you slipped. Do you know once you'd left the toilet how many steps you might have taken before you felt something under your feet? A. The only thing I remember was one metre apart. … Q. Then once you slipped over, did you land on your backside? A. I landed on my back, and then I fell."
The appellant was taken back to the point at which she had been approached by staff of the Centre and was asked to explain what happened. She did not repeat the statement which appeared in the incident report, namely that she had slipped on water.
The fact that the appellant sued with the assistance of a tutor and was, on occasion, inarticulate in giving her evidence, indicated a level of intellectual disability or psychological impairment. The evidence before the Court as to the nature of her impairment was limited. However, an Australian Government Employment Services Assessment Report dated 28 May 2012 noted that her diagnosed conditions had a functional impact described as "reduced endurance and social interaction difficulties due to persistent negative symptoms of psychosis with acute exacerbations …, reduced reliability due to fluctuating anxiety levels with panic attacks, concentration/cognitive difficulties and [drowsiness] due to medication side effects." [7] With respect to her educational history, the report stated: [8] "The client reported having Year 10 of schooling completed, as well as TAFE courses in childcare, cooking, hairdressing, office administration and retail operations."
Her mother also gave evidence at the trial. Whilst she was not present when the accident occurred, she was notified of her daughter's fall by the appellant's brother and came to the corridor outside the toilets where her daughter was sitting against a wall. She said there were three security guards present. [9] The following exchange took place: [10] "Q. What did Lisa say, anything about her knee once you'd seen her and had an opportunity to talk to her? A. Well, as soon as I saw her I said - I asked her what happened. She said, 'I slipped. I fell. My - my - my foot is - my knee is very - my leg', she said, 'Is very sore.' And I said, 'Can I help you up?' and I was trying to help her up because I just got the thinking I'll try. She goes, 'No, no, no, don't touch me. I - I can't move.'"
Her mother was also asked whether she had a conversation with a security guard: she agreed she had and stated, "He'd said that she had a fall." [11]
The final aspect of the evidence relevant to liability was a report prepared by Mr Ian Burn, an engineer with H L Burn & Associates, as to the condition of the surface of the corridor where the fall occurred. Mr Burn noted that the surface comprised 400mm square terrazzo floor tiles. He continued: [12] "These tiles may have an adequate level of slip resistance when dry, however, when contaminated, that slip resistance is lowered, i.e., customers walk from an acceptable level of slip resistance to an unacceptable level of slip resistance without warning." Mr Burn relied upon a table prepared by Standards Australia which indicated that the risk in the area of the food court was designated "moderate" but in other areas was "very high". Mr Burn stated: [13] "This accident could have been prevented as follows: a. Installing a floor surface with a coefficient of friction sufficiently high to aid in slip prevention; b. Implementing and maintaining a system of inspection and cleaning that identifies and removes hazards in a timely manner; c. Installing signs at eye level warning of the hazardous nature of the floor surface; d. ensuring any worker accessing the cleaner's storeroom for chemicals/cleaning tools, etc, exercised the care level required so as not to spill or leave spilt product in the corridors."
Mr Burn gave evidence as to the use of terrazzo as a pedestrian surface in large shopping malls. First, he agreed that it was "the predominant surface", [14] and that it was "used almost universally throughout shopping malls in this State and country". [15] His evidence continued: [16] "Q. … you would agree, would you not, that accepting that terrazzo floors are an accepted norm for the pedestrian surfaces of shopping centres in this State? We can assume that, can't we? A. Well, they're a hard-wearing, aesthetically pleasing surface which is easy to clean using mechanical means, so that's again why they're used. Q. So the secret to having an appropriate floor surface is to have those things I talked about before in place, cleaning systems, stripping, polishing or other treatments that maintain a clean and non-slip surface. Correct? A. With terrazzo-- Q. Yes. A. --clean and dry, yes. Q. And in terms of the contamination of those surfaces, the appropriate steps would be to have in place a regular system of inspection. A. Yes. Q. And cleaning by cleaners. A. That's what is usually practised, yes. Q. On a rotation basis. And in this case we know that there was a cleaning system in place and that this area was last inspected 12 minutes prior to the plaintiff falling. Correct? A. I believe so. Q. And you wouldn't suggest that wasn't an appropriate system, would you? A. Provided it's kept up routinely and there's no distractions, that's fine."
Mr Burn later agreed that it was an appropriate surface if it can be kept dry. [17]

Primary judgment

The primary judge was acutely aware of the difficulty faced by the plaintiff in establishing the cause of her fall, in circumstances where she was alone at the time and had difficulty describing the incident. The judge accepted that she had told the cleaning supervisor, Mr Mudgil, that she had slipped on water, and had probably repeated such statements to hospital staff and possibly to the doctors in giving a history of her circumstances. Nevertheless, the judge was also concerned that she did not refer to slipping on water at any stage in her oral evidence. The judge described the statement that the appellant "felt something under my feet" as "the closest [she] came to describing how it came about that she fell." [18] Before analysing her evidence, the judge stated: "[22] It was agreed between the parties that the constellation of medical issues which requires the plaintiff to be represented by a tutor is of significance when considering her ability to give evidence. She was able to give some parts of her evidence with very careful accuracy but it was my observation that she did not understand some of the questions she was asked. In addition, although she answered truthfully, at times her answer was in conflict with undisputed evidence. I have set out examples of these problems below."
The primary judge also stated: "[27] I have taken into account the limitations on the plaintiffs understanding of the issues and have interpreted them as generously as I can."
Counsel for the appellant criticised this aspect of the judgment on the basis that the judge did not explain how she had taken into account the limits on the plaintiff's ability to give evidence, or how she interpreted answers generously. Those criticisms lacked substance. Reasonably understood, the passages demonstrated a willingness to be satisfied of a factual element based on material which might not otherwise establish liability on the balance of probabilities. In any event, for reasons to be noted, the case did not ultimately turn on whether or not there was water on the floor on which the appellant slipped.
Although the judgment dealt with the issues and evidence discursively, there were two critical steps in the judge's reasoning. Dealing with the evidence as to the surface of the corridor the judge stated, by reference to the only evidence at trial: "[66] The difficulty is that Mr Burn conceded … that the terrazzo floor was an appropriate surface, even for toilet bathroom systems, but added that this depended upon it being kept dry. If the cleaning system is conceded to be sufficient, that is the end of the matter." But the inspection and cleaning system was adequate: so much had been admitted in response to the notice to admit facts, as recorded above at [10]. That point had been noted by the judge at [18].
As senior counsel for the appellant acknowledged, the duty imposed on an occupier of the premises is not to ensure that the floor is dry at all times, but to take reasonable steps in fulfilment of its duty to patrons to ensure that the floor was dry and not slippery. That involved having a system for identifying and cleaning up spills. No criticism was made of the system adopted by Arcadia; rather, it was admitted to be "adequate" which should, in the circumstances be understood as admitting the adoption of precautions which would have been taken by a reasonable person in Arcadia's position, in accordance with s 5B(1)(c) of the Civil Liability Act 2002 (NSW).
If there had been water on the floor, that would have demonstrated that the system had failed; it did not demonstrate that the system itself was not appropriate and adequate as a means of fulfilling the duty of care. No expert said that it was inadequate; indeed, the only expert called, Mr Burn, accepted that it was adequate.
There was a suggestion in argument on the appeal that "implicit in" Mr Burn's evidence was the inference that some other floor surface should be adopted if in fact it could not be kept dry by use of reasonable precautions. However, given the universal use of terrazzo flooring in shopping centres in New South Wales, as he accepted, a finding that such flooring should be replaced would have required the judge to consider, pursuant to s 5C(a), "the burden of taking precautions to avoid similar risks of harm for which the person may be responsible". In other words, careful consideration would need to have been given to the cost of replacing the terrazzo floors throughout the shopping centre, as to which there was no evidence.
In substance, the appellant's challenge to the finding with respect to how she had slipped involved three propositions, namely (i) it was common ground that the terrazzo floor was slippery when wet; (ii) there were several potential sources of water on the floor, including splashes from the nearby toilets and visitors bringing water from the outside where it was raining; and (iii) the appellant's contemporaneous belief that she had slipped on water.
The trial judge was affirmatively satisfied that there was no water on the floor where the appellant fell. [19] In the alternative, the judge said she was not satisfied that the appellant had slipped on water, being a matter on which the appellant bore the burden of proof. [20] It is sufficient to consider the latter conclusion.
If it were necessary to reach a finding as to that matter, I would not be satisfied that the judge's alternative conclusion was erroneous. First, there was the evidence of a contemporaneous inspection of the area by Mr Mudgil, who found no evidence of water or any other liquid on the floor. Secondly, it was unclear how the appellant fell. Although she said she fell on her backside, she also described falling on her left knee, which caused the fracture to the kneecap. It is by no means clear that the mechanism of the fall was consistent with a slip. Thirdly, there was no evidence of any previous slip and fall in the area, and evidence that there were no records of that occurring.
One consequence of the tender of the incident report was that the appellant was faced with evidence that Mr Mudgil had, within perhaps two or three minutes of the incident, inspected the area and found that it was dry and clean. It was submitted that the appellant may have been sitting on the water. However, that proposition was entirely speculative. Further, it did not adequately account for the fact that the appellant was helped into a position where she was sitting against the wall, after she fell. In short, it was not established that she was sitting over the spot where she had slipped.

Conclusions

For these reasons, the judge was entitled to reject the claim that there was water on the floor. She was also entitled to reject the claim, as she did, on the basis that if there were water on the floor, it was not a result of a breach of duty on the part of Arcadia.
The appeal should be dismissed with costs.
LEEMING JA: I agree with Basten JA. I would add the following by way of a further reason why the appeal must be dismissed.
The primary judge made alternative findings of fact on the principal issue of fact. First, her Honour was affirmatively satisfied that there was no water on the floor of the corridor where the appellant fell. There is some ambiguity in expression at [71] where her Honour stated "I am not satisfied that there was in fact water on the floor". However, the reasons are to be read as a whole, and when [71] is read together with the reference at [76] to a "positive finding" and the statement at [81] that "if my finding that there was no water is wrong", it is clear that her Honour was positively satisfied that there was no water. Secondly, her Honour found that the appellant had not discharged the burden of proof that there was water on the floor which caused her slip and fall.
I am unpersuaded that there is any appellable error in the positive finding that there was no water. In many respects the best evidence of the state of the floor at around 12.20pm that day is what was noted by Mr Mudgil, who recorded that the appellant had said she had slipped on water, but who also recorded that the floor was dry. The form and detail of the note suggests it was made on the spot, before the ambulance arrived, and no submission to the contrary was advanced. The note may have been incorrect, because of human error, but in circumstances where Mr Mudgil must have been thinking of water, not merely because of the way in which the form was generated but also because that was what he had been told by the appellant, this seems unlikely. In circumstances where there was no testimonial evidence that water was present, it was amply open to the primary judge to find that there was no water, consistently with the best contemporaneous evidence on that issue.
McCALLUM JA: I agree with Basten JA and with the additional remarks of Leeming JA.

Endnotes

Carnemolla by her tutor Carnemolla v Arcadia Funds Management Limited [2020] NSWDC 108.
Report, 23 May 2018, p 1. Dr F J Harvey report, 19 September 2017.
The request to admit the fact had identified the wrong date.
Tcpt, 11/03/20, p 110(20).
Tcpt, p 21(2).
Tcpt, p 22(1).
Report, 28 May 2012, pp 1-2.
Report, p 4.
Tcpt, p 42(5).
Tcpt, pp 42(50)-43(5).
Tcpt, p 45(10).
Report, 16 November 2018, p 5.
Report, pp 11-12.
Tcpt, p 80(5).
Tcpt, p 82(8).
Tcpt, p 84(25).
Tcpt, p 94(5)-(15).
Primary judgment at [29].
Primary judgment at [71].
Primary judgment at [81]. 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: 27 November 2020

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