Comitogianni v Sydney Flower Market and ors

(1) Verdict and judgment for the plaintiff against the first defendant in the amount of $50,893.70. (2) Order that the first defendant pay the plaintiff's costs in her claim against the first defendant as agreed or assessed. (3) Verdict and judgment for the plaintiff against the second defendant in accordance with Consent Judgment filed on 23 July 2010 in the amount of $20,000. (4) Order that the second defendant pay the plaintiff's costs in her claim against the second defendant as agreed or assessed. DECISION: 5) Further order that, subject to recovery of the judgment awarded against the second defendant, recovery of the judgment sum awarded against the first defendant is limited to the sum of $30,893.70. (6) Verdict and judgment for the plaintiff against the third defendant in the amount of $50,893.70. (7) Order that the third defendant pay the plaintiff's costs in her claim against the third defendant as agreed or assessed. (8) Further order that, subject to recovery of the judgment awarded against the second defendant, recovery of the judgment sum awarded against the third defendant is limited to the sum of $30,893.70. (9) In the cross-claim between the first and third defendants, verdict and judgment by way of a complete indemnity in favour of the first defendant, including costs. (10) In the cross-claim between the second and third defendants, enter a verdict and judgment in favour of the third defendant on the grounds that the cross-claim was abandoned upon settlement of the plaintiff's claim against the second defendant. Costs as agreed or assessed are provisionally awarded to the third defendant but in making that order the withdrawal of the second defendant from the proceedings on the second day of the hearing is noted and, before this order is entered, submissions invited on costs.

CATCHWORDS: civil - slip and fall - obvious risk - contributory negligence - liability of occupiers and cleaners - indemnity/contribution - loss of business - damages for personal injury

LEGISLATION CITED: Civil Liability Act 2002 Law Reform(Miscellaneous Provisions) Act 1946

Australian Safeway Stores P/L v Zaluzna (1987) 162 CLR 479 Baker v Gilbert et al [2003] NSWCCA 113 CASES CITED: Jones v Dunkel (1959) 101 CLR 298 Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 P & H Property Service P/L v Branigan [2008] NSWCCA 195

Georgette Comtogianni (Plaintiff) PARTIES: Sydney Markets Limited t/as Sydney Flower Market (First Defendant) Nati & Sons Pty Limited (Second Defendant) Storm International Pty Limited (Third Defendant)

Mr M Gilbert (For the Plaintiff) COUNSEL: Mr W Reynolds (For the First Defendant) Mr R Gambi (For the Second Defendant) Mr S Kettle (For the Third Defendant)

Prominent Lawyers (For the Plaintiff) SOLICITORS: Lee & Lyons Lawyers( For the First Defendant) Gadens Lawyers (For the Second Defendant) Moray & Agnew (For the Third Defendant)

1 On the morning of 2 October 2007, the plaintiff, Georgette Comitogianni was going about her business as the proprietor of Mona Lisa Florist in Georges River Road Croydon Park. She left home for the Sydney Flower Markets in Flemington at about 6.30 am. This was later than usual partly because she had her 6 year old daughter, Harmony, with her. It was the Tuesday following a long weekend and still in school holidays. When the plaintiff arrived at the markets she parked her utility, which she used for her business, and entered the Flower Market building, known as Building F, through the western entrance, adjacent to where she had parked. For the purpose of re-stocking her shop, she purchased flowers from stalls occupied by Nati & Sons Pty Limited, the second defendant, and another stall occupied by "Dibbs Roses". The stalls were all located in the first aisle inside the western entrance to the north of the central corridor which ran the full length of Building F from west to east, as shown on the floor plan (Exhibit B). The stalls operated by the second defendant extended the full length of the western side of the aisle (stalls 1A to 5A) and part of the eastern side (stalls 1x to 3x). Stall 5x on the eastern side was operated by Dibbs Roses.

2 Having ordered ten bundles of gerberas from Natis, the plaintiff crossed the aisle and ordered twelve bunches of roses from Dibbs. While the roses were being wrapped, she returned to Natis to collect the gerberas. She then crossed the aisle to Dibbs, took half of the order of roses herself, and gave the other six bunches to her daughter to carry back to her vehicle. The plaintiff described how she cradled the bunches of flowers in both arms as she set off, with Harmony in front of her. She was crossing the aisle towards the western side where Nati's stalls were situated when she slipped and fell on what was subsequently identified as a ranunculus flower head lying on the wet concrete floor of the aisle in front of stall 4A. She fell heavily on her right knee and then onto her left shoulder. Three men from nearby stalls came to her assistance. She was helped up, went back to her vehicle and returned to pay for the flowers before leaving the markets with her daughter.

3 Because she was in considerable pain, the worst being in her right knee, she went to her general practitioner, Dr Markezinis in Ashfield. Dr Markezinis arranged for x-rays to be taken and advised rest. But after the plaintiff returned home, the pain persisted and the swelling in her right knee worsened to the point where she telephoned Dr Markezinis who arranged for her to see Dr Angus Bathgate, a sports physician at St Vincent's Clinic, that same afternoon. The subsequent history and treatment of her injuries will be taken up later in the judgment.

4 In an Amended Statement of Claim filed on 27 October 2009, the plaintiff claimed damages against all three defendants alleging breaches of their respective duties of care: the first defendant in its capacity as owner/occupier of Sydney Flower Market (Building F); the second defendant as the occupier of the stall adjacent to the site of the fall and the third defendant as the cleaning contractors employed by the first defendant to clean the toilets and public areas of Building F.

5 In her claim against the first defendant, the plaintiff alleged breaches of a general duty to exercise reasonable care to lawful entrants in the implementation and performance of a reasonable cleaning system, in keeping the floor area of Building F free of debris and in the supervision of stall holders with regard to such cleaning and safety measures in order to prevent the spread of debris on the floor. As against the second defendant, a breach of duty was alleged in failing to keep the floor immediately adjacent to the stalls occupied by the second defendant free from debris and it was alleged against the third defendant that it had been in breach of its duty to implement and maintain a reasonable cleaning system and to use reasonable care to ensure that the floor was free of debris.

6 In cross-claims against the third defendant, the first and second defendants sought indemnity or contribution for any liability they were found to have to the plaintiff. The first defendant's cross-claim was based on alleged breach of contract and in the alternative relied on s5(1)(c) of the Law Reform(Miscellaneous Provisions) Act 1946. The second defendant's cross-claim relied only on the 1946 Act.

7 In its defence, the first defendant denied liability and in the alternative pleaded contributory negligence and obvious risk under s5F of the Civil Liability Act 2002. The second defendant also denied liability. In pleading the defence of contributory negligence, the second defendant relied on s5S of the Civil Liability Act (under which a claim is defeated if the contributory negligence is determined at 100%). The second defendant also pleaded by way of defence obvious risk under s5H of the Civil Liability Act and inherent risk under s5I of that Act.

8 The third defendant denied liability and pleaded defences in terms generally similar to those pleaded by the second defendant.

9 With regard to the cross-claims, the third defendant denied liability to the first and second defendant in either contract or tort.

10 On the second day of the hearing, the second defendant announced that it had settled the plaintiff's claim and that terms of settlement were to be filed. The second defendant accordingly took no further part in the proceedings. Those terms, in the form of a Consent Judgment, were filed on 23 July 2010.

11 Mahmoud Fahda had worked at the Flower Market since 2001. He was a student at the University of Western Sydney and his uncle was the proprietor of Dibbs Roses. He was working three to four mornings per week around October 2007. He said that spring was a busy time for the stall.

12 He described how buckets containing water and plant debris were emptied into drains spaced along each corridor after flowers were sold. He said most of the water ran off in the drains. However it was very common to see debris including broken flower pots, plant stems and flower heads on the floor, which was always wet. A cleaner with a wheelie bin and broom came around once every shift. Mr Fahda described him as a man with long hair and bad teeth, wearing a yellow vest. This man was identified by the first defendant's witnesses as Brett Needham, who was employed by the first defendant as a cleaner.

13 Mr Fahda's evidence was that he was working at Dibbs Roses at 7am on 2 October 2007. He remembered the plaintiff purchasing twelve bunches of roses, and while the roses were being wrapped he saw her go and pick up some flowers from Nati's stall opposite, after which she returned to Dibbs to collect the roses. After collecting the roses from Dibbs, the plaintiff headed left and while proceeding towards the exit she slipped and fell heavily on her right knee. A man named Ali, from the stall next to Dibbs, and Mr Fahda went to the plaintiff's aid and helped her to her feet. Mr Fahda said that the plaintiff was embarrassed and anxious to leave.

14 Some forty five minutes after the markets had opened that morning, at approximately 5.30am - 5.45am, Mr Fahda had noticed the squashed remains of a white ranunculus flower head on the floor in the area where the plaintiff fell one and a half to two hours later. He said that the white flower head had stood out against the dark colour of the stained concrete floor. The squashed remains of this flower were left on the floor where the plaintiff slipped.

15 I have no reason not to accept his evidence. It corroborates the plaintiff's version in a number of respects. Importantly, his identification of the flower head and its location was more specific than the plaintiff's own recollection on which adverse comment was made by defendant's counsel, because of inconsistencies.

16 Philip Buckland, a mechanical engineer, was the author of a report dated 23 March 2009 which was tendered in evidence by the plaintiff (Exhibit F). Mr Buckland had attended the Flower Market site and prepared his report on the basis of that inspection and on instructions containing a history provided by the plaintiff. He was not called to give oral evidence. He states in his report: "Flowers and other similar vegetation debris was said to be present on the floor where the plaintiff slipped. That material would typically contain moisture and have an easily crushed, cellular structure. It would also provide little resistance against shearing internally and would thus be intrinsically slippery, when crushed underfoot. "Flower and vegetation debris could significantly reduce the slip resistance available on the market hall floor, to the extent that slipping accidents would be likely to occur on such debris."

17 On that evidence, together with that of Mahmoud Fahda, I am satisfied that the fall occurred as generally described by the plaintiff and Mr Fahda when she slipped on a ranunculus flower head lying on the wet floor of the aisle in the vicinity if a stall run by the second defendant.

18 Ms Ayoub is the mother of the plaintiff and proprietor of Violet's Florist and Garden Centre, Rockdale. She has thirty years experience as a florist, and is a TAFE lecturer. She has been going to the Flemington Flower Market since it opened in 1981. In 2007 she went to the Flower Market three times a week and spent two to two and a half hours there on each visit. The Flower Market was open to the public from 5.00am to 11.00am and the busiest period was from 5.00am to 8:00 or 8.30am.

19 During her visits to the market she would cover the whole market checking for bargains and making several trips to her car. The floor was always wet, with greenery, plant stems and flower heads on the floor. She often saw stall holders throw water and debris from buckets in the direction of the drain from a distance of five to 10 metres and on occasions she had to jump aside to avoid getting wet herself. She also said that plant matter such as petals dropped from flowers to the floor as customers left with their purchases.

20 Like Mr Fahda, she remembers seeing Mr Needham, the cleaner, from time to time in different parts of the building. She described him as having long hair and a moustache, with bad teeth, wearing an Akubra hat and a fluoro jacket, and pushing a wheelie bin. She said that she saw Mr Needham no more than once a week, and only ever saw him pushing the wheelie bin. She never saw him sweeping or picking up debris. Mr Fahda did see Mr Needham picking up debris. Because his observations were on a daily basis over a number of hours in the same general area, his evidence is more reliable in this respect.

21 Mr Gubbins was called by the first defendant. He was employed by the second defendant at the markets from May 2007 until October 2009, where he worked in the upstairs office (Building G). However, on the busiest days, namely Mondays (or Tuesdays after a long weekend), Wednesdays and Fridays, he worked "on the floor" (Building F) as well, between the hours of 4.45am and 8.30am, which covered the busiest time from 5.00am to 7.00am. Before May 2007, he had been employed collecting flowers from the markets for a former employer, a retailer, for an hour per day on Mondays, Wednesdays and Fridays from early in 2005.

22 He described Mr Nati as being "anal" about keeping the floor clean. Mr Nati was always asking his employees to clean and sweep the floor. The other aisles in the building were not as clean as his aisle and other stall holders would empty their flower buckets as described by Ms Ayoub. Mr Gubbins said that a regular cleaner, having long hair, wearing a fluoro vest and a 'cowboy' hat, with a wheelie bin and cleaning equipment, came around and swept the aisle and around the drain area, "intermittingly(sic), about at least once an hour". He said that water and debris was often seen in the area, but not for long, and never for two hours, because Mr Nati would get it swept up. I do not regard Mr Gubbins' evidence in this respect as a reason for rejecting Mr Fahda's evidence concerning the period of time the ranunculus remained on the floor outside stall 4A on the morning of the plaintiff's fall. There are a number of details on which Mr Cubbins' recollection was in conflict with that of witnesses whose evidence was generally more reliable.

23 On 2 October 2007, Mr Gubbins was working at stall 5A, which is situated at the main corridor end of Building F, opposite stalls 7X to 8X, and next to stall 4A. He saw the plaintiff, a regular customer, whom he knew as "Zsu Zsu", walking from the stall diagonally opposite the Nati stall. He thought it may have been stall 6X or 7X, although Mr Fahda had earlier said it was stall 5X. He saw the plaintiff falling over towards him, and "hit some buckets". The plaintiff denied hitting any buckets, and there was no mention of buckets in the evidence of Mr Fahda. Mr Gubbins helped Mr Fahda pick her up and heard the plaintiff say "Who do I sue?". He noticed a tear in the knee of her jeans and believed she was wearing leather thongs or sandals, another observation unsupported by any other evidence. He made sure she was all right and may have helped her carry some of her flowers to her car. He thought Nati had white, yellow and pink ranunculi on sale that day around stall 4A.

24 Despite his unreliability as a witness on some matters of detail, as a witness in the first defendant's case, where his evidence was corroborated against the interests of one or more of the defendants, such as his observations of Mr Needham (except for the frequency of his rounds), it was entitled to be given some weight.

25 Mr Kapellos had been employed by the first defendant for twelve years - for the last six to seven years he was "environmental manager" responsible for the whole market complex. His normal workday would commence between 7.30 and 8.00am and would end at 5.30pm.

26 During October 2007 he visited Building F three or four times per week and performed audits on cleaning procedures, whereby he would at random spend ten or fifteen minutes walking through the common areas and toilets and checking on the work of the two cleaners employed by the third defendant. He said that the cleaners spent most of their time "on the floor" in common areas with a broom and a scooper, picking up debris and depositing it in "Sulo" bins at the end of each aisle, while occasionally entering the toilets where they would use a mop.

27 Mr Kapellos admitted that he had never had the opportunity to observe the whole cleaning routine. However, he understood that a cleaner started by cleaning the toilets situated in the north eastern corner of Building F, which would take five or ten minutes, and would then work through the building, which would take another ten or fifteen minutes, covering the same ground again on return to the toilets, where the remainder of the half hour was spent cleaning. This routine was repeated every half hour. Mr Kapellos also checked to see that the daily service lists, which the cleaners were required to sign off and which were kept in a nearby storeroom, were initialled at the end of each half hour as required.

28 Mr Kapellos said that Brett Needham, who was identified by earlier witnesses, was employed as a cleaner by the first defendant, under the operations manager. There was no coordination between Mr Needham and the cleaners employed by the third defendant. Mr Needham would start at Building F, then do rounds of other market buildings. On his return to Building F, one and a half hours later, he would do a 'walk through' with a wheelie bin, broom and shovel, picking up debris. In October 2007 Mr Needham was most often seen in Building F around 8.00am.

29 Mr Kapellos said that during his random inspections he saw water and debris on the ground but that he never saw anyone fall and was not aware of falls at any other time, which he would have expected to be reported at weekly meetings of the operations, environment and security staff. Mr Kapellos had monthly meetings with the third defendant, including a walkround inspection of the floor and toilets of building F.

30 He said that stall holders would normally empty buckets of water and flower debris into, or within 1 metre of, the drains, and that there were occasions on his random inspections when he spoke to the third defendant about having items of debris removed from the floor.

31 Adrian La Cava had been employed by the first defendant since October 2000, holding the position of market officer in buildings other than Building F, then assistant team leader, including building F, and since August 2007, security manager. One of his duties as security manager was to perform random checks on Building F. He said that there was no record of falls in Building F before October 2007, going back as far as 1997.

32 Before his appointment as security manager in August 2007, he observed the two Storm cleaners start around 4.30am and Mr Needham "spot cleaning" every morning using a wheelie bin, broom and long shovel. During his random checks after that date that he did not notice any changes. He said that he rarely saw any debris on the floor and that, if there was, it was picked up very quickly.

33 He spoke to the plaintiff on the phone on 3 October 2007, when the plaintiff reported a range of injuries. His contemporaneous handwritten notes of this conversation became Exhibit 1D5, from which an "Incident Investigation Report" was computer generated, which became Exhibit 1D6. Exhibit 1D5 records that the plaintiff said she slipped and fell "on some buckets" of cut flowers. Mr Gubbins also mentioned buckets, although this was denied by the plaintiff. On the other hand, Mr La Cava records her wearing joggers, which is consistent with the plaintiff's evidence but contrary to Mr Gubbins'. Her general description of her injuries to Mr La Cava was consistent with other evidence. The plaintiff explained that she did not report to first aid, a fact alluded to by Mr La Cava, because she did not know about it. Furthermore, she was in pain, her daughter was with her, and she "drove straight to St Vincents Hospital". This version is indicative of inconsistencies in the plaintiff's own recollection of particular details, and underlines the need for corroboration of her evidence on material matters, and the importance of Mr Fahda's evidence in particular.

34 Mr La Cava also denied ever seeing buckets emptied in the aisles. He said he would have issued a warning or compliance notice if he had.

35 Mr Roul was employed by the third defendant, Storm International, as supervisor at Sydney Markets since 2003. His work hours were from 5.00am to 12.30pm, with a 20 minute break around 8.00am. His evidence relating to the allocation of cleaners' tasks and routines contained some inconsistencies, more likely a consequence of language problems or misunderstanding than any deliberate deception.

36 He described the cleaning routine in place on 2 October 2007 as follows. Every half hour one of two cleaners, male or female, would spend five to ten minutes cleaning the toilets, and then twenty to twenty five minutes on the floor, zigzagging down the aisles with a dustpan and broom, and finishing down the main corridor. At busy times a "service only" was performed on the toilets, replacing soap and toilet paper. A Daily Service Sheet (Exhibit 1D4) was kept behind the toilet door (Mr Kapellos thought it was the work room door), and signed off by each cleaner at the end of each half hour routine.

37 Mr Roul was satisfied with the cleaning regime and had observed the full half hour routine on occasions. He said that only one of the two cleaners was on the floor at any one time because the car park toilets also had to be checked and this took fifteen to twenty minutes. This is the first and only mention by any witness of the car park toilets. However this still meant that the aisles and corridor of the building were cleaned every half hour by one or the other cleaner and, if the job was done properly, all debris would have been removed every half hour. Mr Roul had tested the viability of the cleaning routine himself. At 8.45am one Thursday, with only ten or twenty people in the building, he needed only fifteen minutes to clean the whole floor area. He only had to pick up five or six items and place them into bins.

38 Mr Roul attended meetings with Mr Kapellos and Mr Younan, Storm's Managing Director, every month.

THE CLEANING CONTRACT (Between the first and third defendants)

39 The relevant evidence concerning the cleaning contract, both documentary and oral, emerged somewhat slowly and unevenly. The full history only became apparent, even to counsel, as the case progressed. The evidence included "Office and Toilet Cleaning Specifications" (Exhibit 1D3, also Exhibit 3D1), also referred to as "Tender No 261". The "Scope of Works" was identified as the Sydney Flower Market, Building F. The trading hours specified were from 5.00am to 11.00am Monday to Saturday, with the peak trading days being Monday, Friday and Saturday, plus Tuesdays after long weekends.

40 The areas to be cleaned were the male and female toilets in Building F. The male toilet was to be cleaned every half hour between 4.00am or 5.00am until 10.00am, then hourly from 10.00am until 1.00pm. The female toilet was to be cleaned continuously between 4.00am and 12 noon. Mr Roul gave evidence that that 4.00am start was abandoned in 2004 in favour of 5.00am. The disabled toilet was to be cleaned every half hour between 5.00am and 9.00am.

41 One staff member, incorporated with toilet cleaning duties, was to perform half hourly floor sweeper duties. The floor sweeper was to ensure that all areas were swept clean and any rubbish was removed, and the floor mopped if required, within the time frequency allocated. The flower market sweeper was also required to ensure that the floor was kept dry in common areas within the flower market, and was also required to sign a register at regular half hourly intervals during cleaning operations. This is a reference to the Daily Service Sheet previously mentioned.

42 In "Tender 261", "default" includes: "failure to properly clean areas where appropriate to an acceptable standard". Default was a precondition to suspension of the contract but it could reasonably be inferred as also supporting a breach giving rise to a right to damages.

43 The "Agreement" between the first and third defendants for "office and toilet" cleaning services (part of Exhibit 1D3) was in force between 27 October 2003 and 26 October 2008. Tender 261 was treated as part of that agreement but Mr Kapellos gave evidence of a "variation" of Tender 261. He relied on a "later" document, internal to the third defendant, which was titled "Toilet Cleaning Revised 2008" but was withdrawn from Exhibit 1D3, because it was not part of the contract.

44 In 2004 Mr Kapellos had a conversation with Mr Younan, the third defendant's Managing Director, regarding "Tender 260"(sic). He asked if the woman cleaner could assist on the floor. Mr Younan replied "no problem" and remarked about women cleaners "standing around". As a result, according to Mr Kapellos, from then on the male and female cleaners shared sweeping duties in the manner described by Mr Roul, though this part of the agreement was not formalised until the cleaning contract "went to tender" in 2008.

45 The first defendant, as occupier, owed a duty of care to lawful users including Flower Market customers to keep public areas of Building F as safe from foreseeable injury as reasonable care could make them: Australian Safeway Stores P/L v Zaluzna (1987) 162 CLR 479, Baker v Gilbert et al [2003] NSWCCA 113. The plaintiff's claim alleged negligence in the (a) design of a system of cleaning the public areas in Building F, and, (b) execution and application of that system.

46 It is not disputed that the third defendant was qualified and competent. But I do not accept the submission of the first defendant that its duty was discharged simply by employing the third defendant. However, subject to any ongoing supervisory responsibility, the first defendant was entitled to delegate day to day execution of the cleaning system to the third defendant.

47 Mr Gilbert, for the plaintiff, submitted that the actual routine was itself impossible to implement because one cleaner could not properly complete all the assigned tasks within each half hour period. In that sense any failure to keep the floor as clean as reasonable care required was in part a consequence of a defective system.

48 One problem for the plaintiff, in this respect, is that both Mr Kapellos and Mr Roul gave evidence that it could be done, especially Mr Roul, who observed the cleaners do it and actually put the system to the test himself, although not in the peak period. The plaintiff did not call any evidence to counter this evidence, but rather appealed to common sense. However, the viability of the system was not a matter of judicial notice. Without the assistance of appropriate expert evidence the Court could not say that it could not be done. The plaintiff failed to discharge her evidentiary onus on this point.

49 There is evidence, however, that the system was deficient in other respects: (i) the simple distribution of sweeping tasks uniformly from 5.00am to 9.00am on a half hourly basis took no account of the intense level of activity between 5.00am and 6.00am. Mr Kapellos said that eighty percent of the customers, numbered in the hundreds, were in the market during that peak period from 5.00am and 6.00am, but by 9.00am there were only ten or twenty customers present. It was therefore reasonably foreseeable that at 6.00am the condition of the floor would be at its worst and required special attention from 6.00am to 7.00am. There was no adjustment in the cleaning system to take account of this. It is more likely than not that a system which properly reflected peak need would have removed the danger which caused the plaintiff's fall. (ii) Mr Needham could have been used as part of the response to (i) above, but there is no evidence of this. Mr Kapellos usually only saw him after 8.00am. According to Mr La Cava, Mr Needham was supposed to do the first of his two rounds after clocking in at 5.00am. If so, did he finish his round well before 6.00 am? How well could the job have been done while the public areas were overcrowded with customers? There is no evidence that a timetable was devised so that Mr Needham would do his rounds when they were most needed and would be most effective. The whole arrangement was "casual". More likely than not, had it been part of Mr Needham's work to do the rounds from 6.00am to 7.00am, the ranunculus would have been removed before the plaintiff's fall.

50 It is not necessary to take account of other matters which were subject to adverse comment in the submissions of the plaintiff's counsel, for example, Mr Kapellos' reliability as a witness on a number of matters including the names of the cleaners and details of the cleaning routine such as the double round and the cleaning of the parking area toilets contradicted by the evidence of Mr Roul. These matters are not material. The first defendant acted reasonably in leaving the supervision of the cleaning routine, once it was put in place, to the third defendant. Equally, the evidence of "cursory" supervision by Mr Kapellos is not relevant. However, the defective design of the cleaning system and the failure to exercise reasonable care to remove a foreseeable risk, such as a heavy fall on a concrete floor, a risk of some magnitude, means that the first defendant is liable to the plaintiff.

51 There is no reason not to accept the evidence of Mr Fahda of the ranunculus head on the floor at least one and a half hours before the plaintiff's fall. There were therefore at least three opportunities for a cleaner employed by the third defendant to remove it, two of which were outside the peak period where it would have been more easily seen because of the reduction in the number of customers in the aisle.

52 The evidence of key witnesses, including Mr Gubbins, described the constantly untidy state of the floor. Cleaners, except Mr Needham, were never seen on the floor area by any independent witness. This evidence leads to the conclusion that sweeping was not carried out properly, if at all, at least in the aisle where the plaintiff fell on the morning of 2 October 2007, and especially between 6.00am and 7.00am.

53 This conclusion is not inconsistent with evidence of Messrs Kapellos, La Cava and Roul as to their observation of cleaners on the floor. It is not necessary to reject that evidence, because it is possible that the cleaners were always careful to be seen sweeping the floor when they were aware that they were under observation.

54 No evidence was called from the cleaners, even though they were available (Jones v Dunkel (1959) 101 CLR 298). I am entitled to assume that their evidence would not have assisted the third defendant. I attach no weight to the Daily Service Lists (Exhibit 1D4). Mere initialling by the cleaners takes the matter no further in the absence of their personal testimony. I note also that the list was headed: "Cleaning-Public Toilet Areas". While not necessarily exclusive, it is symptomatic of the lack of clarity and consistency in the definition of the cleaning routine. Mr Roul's evidence as to his inspections does not establish that sweeping was carried out that day at relevant times.

55 I find the third defendant negligent in failing to carry out sweeping duties during the period before the plaintiff's fall. I rely, in reaching that conclusion, on Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 per Hodgson JA par 57, distinguishing P&H Property Service P/L v Branigan [2008] NSWCCA 195.

56 The first defendant was entitled to expect the cleaning and sweeping to be carried out in accordance with the contract, although itself negligent in the design of the routine which failed to adequately address the heightened danger at the time the plaintiff slipped. The first defendant is therefore entitled to a complete indemnity from the third defendant for breach of the implied term of the contract on the cross-claim.

57 Clause 20 of the Agreement (page 8) states: "Except to the extent caused or contributed to by the negligent or wilful act or omission of [Sydney Flower Markets] or its personnel, [Storm] indemnifies [the Sydney Flower Markets] against all claims, demands, actions, proceedings, loss and liability that [Sydney Flower Markets] may suffer or incur as a result of any, (b) negligent, reckless or unlawful act or omission of [Storm]."

58 The third defendant's failure to carry out the cleaning routine is an independent and sufficient cause of the plaintiff's loss which entitles the first defendant to an indemnity. This is not affected by the finding of negligent design of the cleaning system by the first defendant, that is, the ongoing exception is not applicable.

59 Alternatively, even if there is no contractual indemnity, the first defendant is entitled to one hundred percent of contribution (indemnity) under s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 as joint tortfeasor. It is just and equitable that the third defendant, being responsible for the immediate cause of the plaintiff's injury, should indemnify the first defendant for any liability it would incur for its failure to design and implement a more effective cleaning system.

60 With regard to s 5F, an allegation of "obvious risk" is based on a duty to warn. Since the plaintiff's case as determined against the defendant is not based on a failure to warn on the part of either defendant, the defence under that section has no application.

61 Under s 5I, "inherent risk" is defined as something that cannot be avoided by the exercise of reasonable care and skill. It has no application in this case.

62 S 5S applies only if contributory negligence is assessed at 100%.

63 The plaintiff's own evidence as to the state of the floor of Building F meant that she was well aware of the possibility of debris and water on which she might slip. However that evidence, as corroborated by Mr Fahda and Ms Ayoub and, to a lesser extent by Messrs Gubbins and Kapellos, does not prove that the plaintiff failed to take reasonable care for her own safety. Its primary relevance goes to the defendants' failure to properly address the potential dangers caused by water and debris on the floor. I am not satisfied that the plaintiff she was negligent in not seeing the flower head on the floor before she slipped on it. She was on the move, paying attention to the stall holders and selecting and collecting flowers. Mr Fahda, who for two hours beforehand was standing opposite where the plaintiff fell, was in a far better position to observe objects on the floor. The plaintiff said that she was being careful, and was more concerned with other customers in her path. Furthermore, her ability to observe objects on the floor immediately before she fell was more likely than not impeded by other customers at what was the end of the busiest period. In such circumstances the defendants have failed to establish that her lack of care for her own safety contributed to her fall.

64 The following particulars of injuries were pleaded: - Injuries to right knee and leg; left shoulder; left hip, lower back and neck; - adjustment disorder; - anxiety; - depressed mood; - depression; - post traumatic stress disorder; - bruising; - shock and other psychological sequelae Physical Injuries

65 The plaintiff's physical injuries as outlined in the particulars are broadly consistent with her description of her fall and subsequent medical history. As recorded earlier (para 3), following her fall, the plaintiff drove to see Dr Markezinis and complained in particular of pain being in her right knee. She had x-rays of her right knee and left shoulder taken, then returned home. The swelling and bruising increased, so she phoned her general practitioner. He arranged for her to see Dr Angus Bathgate at the St. Vincents Clinic, and further x-rays were taken. The plaintiff continued to experience pain in her right knee, left shoulder and lower back and neck and she was prescribed Panadeine Forte and Naprosyn.

66 For the first two months after her fall, the plaintiff's right leg was in a metal splint, and she was on crutches. She had to keep her leg elevated as much as possible. She attended her shop but, while there, she issued instructions to an assistant, Mary Rose Romero, to carry out the physical tasks which she would normally have undertaken.

67 In mid-2007, the plaintiff had hired Ms Romero on a part-time basis for fifteen to twenty hours per week. Following the plaintiff's fall, Ms Romero was employed full-time. The plaintiff also received help from an older woman for three to four hours per week for which she was paid $80 per week.

68 After two months the plaintiff was off the crutches and used a walking stick. She had physiotherapy on her right knee and left shoulder until mid-2008. In November 2008 the plaintiff saw Dr Endrey-Walker, a general surgeon. In his report of 27 November 2008 he records the following segments of history taken from the plaintiff: "Swelling in my knee when I stand up for too long". "There are days I can't bend it because of the fluid". "Sitting down I can only bend it to certain extent because it's pulling" "After eight to ten minutes walking I start limping from the pain". "The knee does not give 'but it feels weak'". "The knee does not lock". "I can't squat, I don't kneel, no way".

69 With regard to her left shoulder the plaintiff told Dr Endrey-Walker: "I do bridal bouquets, I hold the bouquet to wire it and I get pain at the shoulder and numbness in the arm". "Sometimes I can't grab properly with my left hand".

According to the plaintiff, bridal bouquet orders were a lucrative source of income for her florist business, and they were handed over to her mother, without any commission.

70 The plaintiff continues to complain of back pain and a hip out of place, caused by limping because of her injured knee. There has been gradual improvement in her left shoulder, and there is no real problem with it any more. Since mid-2009, she has experienced neck pain off and on about once per week. There has been no improvement in her right knee, and there is an ugly protrusion. She wears a knee guard for support, squatting is still painful and she cannot kneel. Her pain is only relieved by Panadeine Forte and Naprosyn, an anti-inflammatory. She said that she takes six Panadeine Forte per day. Sex with her husband was restricted by her pain. Her florist business, housework, gardening and care of the family had all suffered.

71 In his report of 27 November 2008 Dr Endrey-Walker summarised the following radiological findings: "On 2.10.2007 an X-ray of the right knee is reported as showing no abnormality (I viewed the films and there appears to be a significant area of lucency at the tibial tubercle). An X-ray of the left shoulder reports a normal study.

On 4.10.2007 an X-ray of the right knee reports appearances of Osgood Schlatter's Syndrome. There was considerable soft tissue swelling at the tibial tuberosity and marked deformity of the cortical margin with large bone spurs. Several separate fragments of bone were noted anterior to the tubercle.

On 27.11.2007 an ultrasound of the right knee reports fragmentation in the region of the apophysis of the tibial tuberosity. The sonographer was unable to establish the age of the bone fragments. Patellar tendonitis was evident.

On 12.9.2008 an X-ray of the right knee reports prominent bone spurring of the tibial tubercle and a small avulsion fracture fragment measuring 1.5cm at the distal patella insertion. An ultrasound of the right knee again highlights the 15mm ossicle partially scarred into the distal patella tendon."

72 Other evidence in the plaintiff's case on damages includes supplementary reports from Dr Endrey-Walker, dated 2 June and 11 June 2009, two reports from Dr Westmore, psychiatrist, dated 19 November 2008 and 22 June 2009, a report of 9 June 2009 of Cathy Egan, clinical psychologist, as well as Functional/Vocational assessments from Lyn Gosling and Yolla Makhoul of 6 May 2009.

73 There are no reports in evidence from the plaintiff's general practitioner or other treating doctors, physiotherapists or chiropractors and no reports in evidence are more recent than mid-2009.

74 Medical and other evidence going to damages in the first defendant's case (Exhibit 1D8) includes two reports from Dr FJ Harvey, orthopaedic specialist, dated 23 March 2009 and 21 January 2010, two reports from Dr JM Matheson, consultant neurosurgeon, dated 12 November 2008 and 10 February 2010, two reports from Dr John Champion, psychiatrist dated 13 and 14 July 2009, and a report of Amanda McLaughlin. occupational therapist dated 28 October 2009.

75 With regard to the plaintiff's right knee, Dr Harvey suggested a diagnosis of Osgood Schlatter's Syndrome, an adolescent condition causing disturbed growth of the tibial tubercle and associated with some bone fragmentation. This condition usually settles with no further problems. In his opinion there was no evidence of recent a fracture.

76 In his report of 27 November 2008, Dr Endrey-Walker noted the need for an MRI scan of both the right knee and left shoulder, suspecting a rotator cuff injury in the latter. The MRI scan performed on 1 June 2009 of the right knee was commented on by Dr Endrey-Walker in his supplementary report of 11 June 2009: "The scan reports "fragmented intra-tendinous ossification related to the distal patella tendon with a prominent bony protuberance arising from the tibial tuberosity. The amount of marrow oedema and soft tissue oedema in this region would imply a degree of instability or pseudo arthritis.

It is my opinion that the pathology that is described in the report is much more in line with injury than with the pathology of Osgood Schlatter's Syndrome. The latter is a condition usually arising in one's mid teens, and would not give the picture described in the scan report in a 33 year old person.

It is my opinion that the pathology and the ongoing symptoms at the right knee are a direct consequence of the accident of 2.10.2007.

The scan report also makes reference to chondral wear (Grade II-III) at the patella apex, and the significance of this pathology, is that the chondral wear tends to progress with time, and is likely to result in more symptoms in the anterior compartment of the knee with the passage of time."

77 Dr Harvey in his report dated 23 March 2009 stated: "Mrs Comitogianni says that she did have some slight prominence over the tibial tubercles of both knees. She has learnt recently that this was due to Osgood-Schlatter's disease. She says that she had no symptoms in either knee before the accident and she never had treatment for it. She says that the swelling over the right knee has been more pronounced since her fall and has remained painful."

78 Although no reports were tendered from them, notes from Dr Bathgate to Dr Markezenis and from Stephanos Kassabalis, chiropractor, to Dr Bathgate were in evidence. In a letter dated 2 October 2007, the date of the injury, Dr Bathgate included the following observation: "Georgette [ie, the plaintiff] had Osgood Schlatter's disease at her right knee as a teenager".

79 Dr Harvey in his report of 21 January 2010 comments on the MRI scan taken in June 2009, which was the subject of Dr Endery- Walker's report of 11 June 2009 referred to above: "I have viewed these MRI scans and I am of the opinion that this MRI scan doesn't contribute anything further to the evaluation of the knee complaint. It does, clearly, demonstrate the separate bony ossicles lying over the front of the tibial tubercle in the insertion of the patellar tendon, but this was demonstrated on the plain x-rays. The radiologist has rightly stated that the findings have to be considered in the clinical context. The clinical context is that the physical signs radiological appearances are typical of Osgood Schlatter's Disease which is quite common condition affecting a large number of young adults. The radiological appearances noted in this person are not unusual and not normally associated with disabling symptoms in the adult individual."

80 Dr Harvey concludes that, even if the incident on 2 October 2007 resulted in a fracture, it would have resolved relatively quickly. Such an outcome was inconsistent with the extent of ongoing pain and disability complained of by the plaintiff. It was Dr Harvey's diagnosis that the plaintiff suffered only soft tissue injury. He saw no evidence of muscoskeletal injury which would cause continuing problems in the future. He said that there was no consistent evidence of permanent impairment of the left shoulder, lumbar or cervical spine.

81 Dr Matheson agreed, saying that the plaintiff's widespread complaint suggested malingering. He said that the symptoms were grossly disproportionate to pathology, apart from the right knee. Like Dr Harvey, he preferred a diagnosis of Osgood-Schlatter's Syndrome with regard to the knee. He said that any other symptoms were "somatised".

82 Dr Bathgate in his letter to Dr Markizenis of 27 August 2008 described "significant pain in right knee" and back pain from altered gait patterns as described by the plaintiff. The letter continued: "clinically, there is evidence of self-limitation and over-protection" … "degree of pain is out of proportion to her clinical examination".

83 Mr Kassabalis in his letter to Dr Bathgate dated 16 January 2008 refers to chiropractic treatment for lower back pain and right sided knee pain, and describes considerable improvement in lower back pain. He said that a program of knee rehabilitation had started but "it has been most difficult to prompt Ms Comitogianni into making an appointment to even begin these exercises."

84 Other evidence, including the cross-examination of the plaintiff, showed that back pain had been a problem for a number of years. At times it was caused by lifting while at work in the florist shop. It was especially bad following the birth of her son and there was evidence of treatment sought just before 2 October 2007. I conclude that there is no causal connection between the plaintiff's ongoing back pain and the fall, which at most caused short term aggravation.

85 The injury to the plaintiff's left shoulder was soft tissue injury, which has resolved with no permanent consequences.

86 As to the plaintiff's credit generally, I find that she has exaggerated the physical consequences of the fall, especially the duration of the injuries, and has been reluctant to concede any improvement. Often when confronted with inconsistencies in her evidence, her answer referred to "good days and bad days". There were also wildly differing accounts of her level of medication, ranging from one to six Panadeine Forte per day.

87 Without doubt her most serious injury resulting from the fall was to her right knee. The immediate consequences were both painful and significantly disabling, especially for the first three months. Since then there has been improvement and more likely than not her knee injury has stabilised for the last two years.

88 The unsightly protrusion on her knee is real and embarrassing for the plaintiff, but most likely is partly a consequence of Osgood-Schlatter's Syndrome, as suggested by Drs Harvey and Matheson.

89 Exhibit 1D1(A) contained video footage of the plaintiff taken on 11, 13 and 15 August 2009. Exhibit 1D1(B) contained video footage of the plaintiff taken on 16 and 17 April 2010

90 The footage of 11 August 2009 showed the plaintiff using a four wheel drive vehicle, which in her evidence she said belonged to her husband and that she did not drive. At 8.14am she was shown carrying her two and half year old son. At 8.21am she left in the vehicle for the florist shop. Later she left the shop premises and walked to the school attended by her daughter and then she proceeded to walk to her husband's hardware shop in Brighton St Croydon Park. Eleven minutes later she was filmed returning on foot to her shop. Later that day the plaintiff was filmed collecting her daughter from outside the school and then driving off in the four wheel drive vehicle to collect her son whom she placed in the vehicle before driving back to her shop. She was filmed later in the day carrying plants into the shop from the footpath and then sweeping the footpath.

91 The video footage of 13 August 2009 showed the plaintiff outside her shop, conversing and waving to a passing motorist. Again she was filmed carrying plants into the shop. On the morning of 15 August 2009, after a delivery of flowers to her shop, she was filmed removing the flowers from boxes. She was bending at the waist to reach into the boxes.

92 On 16 April 2010 the plaintiff was again filmed outside her shop, taking delivery of flowers and later driving her Holden utility to and from the shop. On 17 April 2010 the plaintiff was filmed reaching high with both arms and putting up balloons, also bending from the waist to reach plants on the footpath, and sweeping debris into a pan.

93 My general observations from these videos are that, although there were admittedly short periods of video footage, there was no sign of limping or the need to sit down, nor any limit on arm movements. The plaintiff was generally unrestricted in physical activity: walking, lifting, sweeping, and leaving, entering and driving motor vehicles, including a four wheel drive. This was all consistent with the conclusion that her claims of ongoing physical limitations have been grossly exaggerated. The plaintiff was able to perform everyday tasks, including taking her children to and from day care or school, and attending to her shop from early morning until evening. There was no sign of restricted movement in the plaintiff's shoulder, neck or back.

94 As to the plaintiff's knee, there was no limp or restriction on walking. This does not exclude some intermittent pain, for example in cold weather, or some limit on flexion and weight bearing, for example kneeling. It cannot exclude some such residual pain or discomfort but not enough to affect her capacity to work and carry out most of her household and parental responsibilities.

95 Dr Westmore in his report of 19 November 2008 described the plaintiff as having an anxiety disorder, in particular a fear of water on the ground, as well as an adjustment disorder with depressed/anxious mood. He recommended that she undergo ten to fifteen sessions with a psychologist, with a psychiatric follow-up (if there was no improvement).

96 Cathy Egan, psychologist, saw the plaintiff in March 2008 and subsequently diagnosed moderate depression/anxiety. She recommended further treatment for pain management and anxiety.

97 Dr Champion, saw the plaintiff for the first defendant on 2 July 2009 and in his report of 13 July 2009 stated that the plaintiff's presentation was not consistent with her current anxiety or depression. He indicated that she possibly "suffered adjustment disorder with some anxiety and depressive symptoms whilst her soft tissue injury was troubling her prior to its resolution", but was currently simulating a disorder, likely both psychological and physical.

98 Dr Champion went on to explain: "In using the term 'Simulation of Illness' I have avoided making the distinction between hysteria and malingering for a number of practical reasons. In form they are identical. Both have the central core of simulated illness. In both the fake is moulded by what the person believes is the characteristic form of a genuine illness. In either case the disorder serves a purpose for the individual.

99 I broadly accept Dr Champion's diagnosis but in accepting "simulation" I make allowance for the genuinely profound effect which the injury had on the plaintiff. On her own evidence she lived for her work. The success of her florist business was a very high priority in her life. The unwelcome interruption caused by her physical injury with the prospect of long term damage to the business had a quite profound psychological effect. She needed further counselling, as recommended by Ms Egan, but as with her physical sequelae, the recommendations of those treating her were not followed, for whatever reason. The plaintiff says this was because of a lack of money. It was, in my judgment, more likely part of a pattern of conduct designed (even if "unconsciously" and I note Dr Champion's comments on that term) to maximise her disabilities pending the resolution of her damages claim. However, I am satisfied that some appropriate compensation is needed, even at this late stage, to address once and for all the need to come to terms with her present condition.

100 This is agreed mathematically. I rely on the figure in the plaintiff's written submissions - $8,134.00

101 In para 99, I accepted the need for counselling. I also accept the need for some physiotherapy or chiropractic treatment for her knee (all of which were prematurely terminated). While these items defy precise calculation, I allow, $2,500 for each - $5,000

102 The plaintiff's case on economic loss, past and future, was based on financial records (profit and loss statements and balance sheets) of Mona Lisa Florist (Exhibit F). It is difficult to extrapolate from these statements a reliable assessment of the plaintiff's loss of earnings. Business loss, for example for taxation purposes, is not always a reliable indication of loss of income in the hands of the proprietor of the business and, even if the recorded losses to the business are accepted as evidence of loss of income to the plaintiff, such losses are often distorted by accounting entries which are not relevant to actual income, for example, depreciation.

103 In this case the turnover of the business actually increased in 2008 but decreased in 2009. On the other hand, purchases in 2009 exceeded those in 2007. Some expenditures affecting net profitability were causally unrelated to the plaintiff's injuries, such as rent increases.

104 There were other outgoings, allegedly resulting from the injuries which, for at least a substantial proportion of the period between injury and trial, were unnecessary, such as the cost of delivering flowers to the shop by courier. Similarly the continuing claim by the plaintiff that her injuries prevented her from undertaking lucrative wedding contracts is not supported on the medical evidence. Her shoulder injury, which at first interfered with the intricate work of assembling bouquets, has not been a problem for some considerable time.

105 The only quantifiable source of economic loss is the salary paid to Ms Mary Romero, who was employed full-time following the plaintiff's injury. The financial statements do not support the plaintiff's claim based on $200 per week. The salary item shown in the profit and loss statements for the 2007/2008 and 2008/2009 years is $10,400 ($200 per week) and $22,440 respectively. After allowing three months of the first of the two tax years of only twenty hours per week, the salary level would appear to have been affected only marginally by the events of 2 October 2007.

106 The plaintiff is not assisted by her evidence that extra salary was paid to Ms Romero and the elderly pensioner by way of cash in hand. If the plaintiff chose to contribute to a deception of the Taxation office in this way, she cannot rely on such a practice to enhance her award for damages. On the medical evidence, I find that her injuries did affect her capacity to earn but for no more than six months following the incident on 2 October 2007. I assess the loss on the basis of the need to employ a person to replace her in the florist shop for twenty hours per week. Using the financial statements to assist in calculating that loss, I have used an hourly rate of $5. Six months' salary at $100 per week makes a total amount recoverable for loss of income, properly attributable to the defendant's negligence, of $2600.

107 Consistently with my assessment of economic loss, I find that any need for assistance in her personal care, household and parental responsibilities did not extend beyond six months post accident.

108 An additional consideration relevant to this head of damage is the plaintiff's pre-injury lifestyle. She worked at her business for long hours, seven days a week. On her own evidence she "lived for her work", which left very little time for caring for her family or attending to household chores. She relied heavily on the support of her brother and husband. After the birth of her son, it was her mother-in-law who assumed responsibility for his primary care.

109 When her pre-injury lifestyle is taken into account, added to the fact that she had substantially recovered from the worst of her injuries within six months, an award for domestic assistance cannot be supported beyond that period.

110 For the purposes of quantification, I get no assistance from the functional and vocational assessment reports tendered by the plaintiff (part of Exhibit F) based as they were on an entirely uncritical acceptance of the plaintiff's own exaggerated history of her injuries. While any quantification defies precision in such circumstances and the plaintiff's needs would have fluctuated during the six months of convalescence, I am satisfied that a case has been made for the award of damages on the basis of need for assistance of one hour per day over that period.

111 The statutory rate varied up and down three times between October 2007 and March 2008. However I have adopted the rate of $22.85 per hour as an acceptable median figure between $2.05 and $2.79, as suggested in the plaintiff's submissions. Assessed at seven hours per week for twenty six weeks (which meets the statutory threshold), the damages recoverable under this head amount to $4159.70.

112 I assess the plaintiff's injuries overall at 25 per cent of the most extreme case, which entitles here to a sum under this head of $31,000.

ORDERS (1) Verdict and judgment for the plaintiff against the first defendant in the amount of $50,893.70 . (2) Order that the first defendant pay the plaintiff's costs in her claim against the first defendant as agreed or assessed. (3) Verdict and judgment for the plaintiff against the second defendant in accordance with Consent Judgment filed on 23 July 2010 in the amount of $20,000 . (4) Order that the second defendant pay the plaintiff's costs in her claim against the second defendant as agreed or assessed. (5) Further order that, subject to recovery of the judgment awarded against the second defendant, recovery of the judgment sum awarded against the first defendant is limited to the sum of $30,893.70 . (6) Verdict and judgment for the plaintiff against the third defendant in the amount of $50,893.70 . (7) Order that the third defendant pay the plaintiff's costs in her claim against the third defendant as agreed or assessed. (8) Further order that, subject to recovery of the judgment awarded against the second defendant, recovery of the judgment sum awarded against the third defendant is limited to the sum of $30,893.70 . (9) In the cross-claim between the first and third defendants, verdict and judgment by way of a complete indemnity in favour of the first defendant, including costs. (10) In the cross-claim between the second and third defendants, enter a verdict and judgment in favour of the third defendant on the grounds that the cross-claim was abandoned upon settlement of the plaintiff's claim against the second defendant. Costs as agreed or assessed are provisionally awarded to the third defendant but in making that order the withdrawal of the second defendant from the proceedings on the second day of the hearing is noted and, before this order is entered, submissions invited on costs.

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