Faruk v Sydney Airport Corporation Limited & Asset Link Services Pty Ltd

Faruk v Sydney Airport Corporation Limited & Asset Link Services Pty Ltd - [2021] NSWDC 206 - NSWDC 2021 case summary — Zoe

[6]

The site where the plaintiff was injured

An efficient taxi service is acknowledged by the defendants to be an essential part of Sydney Airport's services. Both the international terminal (T1) and domestic terminal (T2) had taxi ranks which were in continuous use by the streams of travellers leaving the airport. There were regular meetings between airport personnel and representatives of the taxi industry at which issues of mutual concern relating to passengers' smooth transition to and from the airport and homes or businesses were raised.
An integral part of these taxi facilities was the provision of holding bay toilet facilities, immediately adjacent to the taxi ranks, at both the international and domestic terminals, for the use of drivers as well as members of the general public. These were situated close to the taxi rank because they were intended to be for the convenience of both taxi drivers and their passengers. In addition, for the benefit of persons of the Muslim faith, there was a prayer room immediately adjacent. For Muslims, in order to pray, hands and feet had to be washed, and this meant that they used the toilet's basin facilities for this purpose as well.
Although referred to by the airport management and staff as "the taxi rank toilet", this toilet is open for general use as well as for taxi drivers and has a high rate of usage as a result. Assetlink estimates that, from the time the toilet block was opened in 2004, 8,870,000 people would have used them (submissions, paragraph 19). These millions of entrants were not only using the toilet facilities but also using the toilet's basin facilities to wash hands and feet before going to the adjoining prayer room and emptying/filling water bottles at the basins, which added greatly to the amount of water on the fittings and floor. Failure to use the hand dryers (which were not always working) also contributed to the wetness of the floor. In addition, some users displayed poor hygiene, leaving used tissues on the floor, throwing items in the toilets such as paper cups which caused blockages and, to the concern of the cleaners as well as the users, smearing surfaces with faeces.
As a result, there were complaints from the cleaners about the unsanitary condition of the toilets, which made their work difficult to do. It is not in dispute that, despite the planned cleaning regime, it was impossible to keep the toilet floor clear of water during the four planned visits a day. The result was a toilet floor which was wet again almost immediately after cleaning, in circumstances where, to use the words of SACL's counsel in his written submissions (at 22.4), there was a "practical inability" to keep the toilet floor dry (and, by inference, clean).
Over the two years before the plaintiff's injury (2014 - 2015), the Australian Competition and Consumer Commission ("ACCC") had carried out a survey of the quality of the services provided to taxis in all Australian airports ("Survey of Quality of Services (landside) provided to taxis by Australian monitored airports in 2014 - 2015", Exhibit A, Tab 48). The Sydney Airport ACCC survey, which dealt with all taxi-related facilities, both domestic and international, defined "taxi facilities" as referring not only to taxi access but also to "other facilities such as restrooms, cafes, prayer rooms, fuel pumps and washing equipment" (Exhibit A, p. 784). The ACCC survey noted that, while there were no issues with access to these facilities by taxi drivers, there was a "major problem" with the "regular cleaning of holding bay toilets". It is clear from the context of this survey that these comments identified both the international and domestic terminal taxi toilets.
The "major problem over the past year" (2015) was described as follows (Exhibit A at p. 784): "As cleaning is contracted and regular cleaning is carried out, there appears to be no standby for extra cleaning services when required from time to time."
This had been acknowledged by the airport and the taxi industry to be a major problem "over the past year". The ACCC survey noted that a report had been requested by the Taxi Council. In particular, the survey also noted ongoing plans for the "upgrade of holding Bay toilet facilities" (p. 478). It is not in dispute that an upgrade of the international taxi toilets was completed on 22 December 2015, but that no work had yet been carried out on the domestic taxi toilets.
Another problem SACL discussed with the Taxi Council was "the annual cost of serious malicious damage to these toilet facilities, this is approximately $80,000 per year" (Exhibit A, p. 753). At a meeting with the New South Wales Taxi Council representatives in October 2017, SACL, noting earlier correspondence sent to them in June 2017, was considering charging drivers a fee to enter the holding bay, as well as carrying out the renovating of the toilet facilities to help deal with the high usage. Some idea of the importance of the location and use of these toilet facilities may be gleaned from an incident in 2017 where a taxi driver who attempted to use the toilets while they were shut for repairs became involved in a fist fight with an airport maintenance worker, who had his wrist broken after two other taxi drivers intervened. The toilet facilities were closed as a result and the taxi drivers staged a protest. The toilets were reopened two days later with a security guard and dog in place and surveillance cameras installed. It is not specified whether this incident occurred in the international or domestic taxi toilets, or what renovations were being carried out but since the international toilet renovation had been completed in 2015, it is likely to have occurred during the 2017 domestic terminal taxi toilet renovation.
As stated in the ACCC survey, improvements commenced in 2015, starting with the international terminal taxi holding bay toilet facilities. These were completed on or about 22 December 2015. Mr El Cheikh, the manager, Ground Transport, notified "All Taxi Networks" of the improvements to the taxi driver toilets, which were now fully operational and "part of the airport's continuing investment in better services and facilities for taxi drivers" (Exhibit A, p. 777). He went on to list the improvements to benefit all taxi operators and drivers as including: "a. An enclosed washroom adjacent to the prayer room b. Foot baths with seating for four persons c. Fully refurbished bathroom with new toilet fixtures and fittings d. Urinal partitions; e. A water bubbler; f. Shoe racks; g. New signage; h. New outside awning on the existing structure for more shelter."
The communication concluded by thanking all drivers and operators for their cooperation and patience while the work was being completed.
Apart from the new signage, the other items provided were improvements of the kind relevant to the ongoing water and cleaning problems in the taxi rank toilet at the domestic terminal. Although SACL acknowledged renovation of domestic taxi toilets occurred in early 2017, whether these mirrored the international terminal renovations is unknown, as no documents have been provided to the Court apart from photographs taken by the plaintiff in 2017, which show the addition of washing basins for the prayer room outside the taxi toilets. What other renovations were carried out is not the subject of evidence.
At a date prior to June 30, 2016 (although it is unknown whether this occurred before or after the plaintiff's injury on 19 June 2016), the situation was so bad that SACL advised representatives of the taxi industry that they were considering replacing the domestic terminal taxi toilet with a row of portables. A newsletter circulated to taxi drivers by those industry representatives gave them the following warning: "This is a message to all drivers at the Sydney Airport holding bay. It is of the utmost importance that drivers do not abuse the facilities, and ensure restrooms are left in a clean and respectable state. Cleaners have had to deal with disgusting and unacceptable standards in toilets.… If this continues, we are at risk of losing the facilities, with the current building potentially being replaced with portable toilets. This behaviour will not be tolerated for much longer." (Exhibit A, p. 758)
Photographs and video tendered on behalf of the plaintiff, taken shortly after 28 June 2016, graphically demonstrate the wet and filthy state of the floor, as well as wet toilet tissue and soapy material of unknown origin (Exhibit A, p.256 - 257).
The domestic terminal taxi rank toilet was the subject of two renovations and repair, at first an unknown time between the date of the plaintiff's injury and the date that photographs were taken by the plaintiff in March 2017, and again in 2020. A subpoena returnable on 4 January 2021 sought all records relating to reports on the floor surface of the taxi toilets and renewal or replacement of the floor surface for the period 30 June 2013 to date (Exhibit A, pp. 684 - 5). However, no documents were provided about this work and, in particular, about the circumstances in which the floor is shown in the plaintiff's 2020 photographs to be bare concrete, with the tiles removed.
The defendants assert that the 2017 renovations (the date of which has been the subject of inconsistent submissions: T 218-221, and about which no information has been provided) did not include replacement of the tiles in the toilets. However, photographs taken by the plaintiff in June 2020 clearly demonstrate that the toilet floor is now concrete and not tile: Exhibit A, pp. 289-293. Faced with a choice between photographs taken by the plaintiff, which were admitted without objection, and assertions from the bar table which are not the subject of evidence, I proposed to accept the evidence of the photographs taken by the plaintiff showing some renovation in 2017 to provide foot baths, and some renovation prior to early or mid-2020 to remove the tiles entirely, leaving a concrete floor.
In summary, prior to the plaintiff's injury, the condition of these toilets, particularly with regard to leaks and spillage, was the subject of complaint by the cleaners to the relevant personnel in airport management as well as by the taxi industry and toilet users in circumstances where both defendants were on notice and SACL had made what appear to have been promises to the ACCC to upgrade both the domestic and international taxi rank toilets.
As well as making complaints himself, the cleaning supervisor, Mr Raj, Assetlink's witness, agreed that the taxi toilet floor was invariably wet again almost immediately after cleaning. As is set out below, Mr Raj said he knew nothing about Assetlink carrying out slip testing or using non-slip products or seals for the floors, despite provisions identifying the performance of these tasks as being part of Assetlink's obligations in the cleaning contract entered into between the parties.

[7]

The cleaning contract

The first and second defendants entered into a cleaning contract (exhibit A, pages 298 - 364) on 23 May 2013. It is not in dispute that the "site" identified on page 8 of this document includes building 631A, where the toilets are situated.
Assetlink agrees that the contract did impose certain requirements for slip testing (although denying that this included the toilet area), confirming that SACL had stipulated what was required under the contract, as well as for cleaning frequency. Clause A20.3(b) required Assetlink to perform slip resistance tests in accordance with the relevant Australian Standards, but only, according to Assetlink, at three specified locations, namely the Aerobridge floors, the food courts and the floors of the terminal. Assetlink and SACL both submit that there is no mention of a requirement to perform such tests at other locations, including the taxi toilets the subject of this litigation (written submissions, paragraph 138). Accordingly, it is submitted, there was never any requirement for such a test to be carried out. Assetlink points to the specifications for these sites in the "prolix and repetitive" (written submissions, paragraph 108) contractual provisions by way of comparison, noting that the specification for the food court (Exhibit A, p. 524) to require wet slip testing the conducted consistent with this clause, whereas the Bathroom Specification Periodical Tasks (Exhibit A, p, 514) make no reference to slip testing all, but that matter, testing in relation to anti-slip products.
It is asserted from the bar table that this is how the parties interpreted the contract, and that, although Assetlink did arrange for slip testing at these specified locations (according to the supplementary submissions of both defendants, although there is no evidence to this effect), providing reports to SACL conformably with the contractual obligation to do so, no such tests were ever carried out in relation to the taxi rank toilet or, it would appear, the international taxi toilets, or indeed any toilets.
Is this, however, what the contract actually says? In order to determine these issues, it is necessary to set out the following clauses of this lengthy and carefully drafted document: 1. Clause 6, headed "Work Health and Safety", sets out obligations of the contractor to identify safety hazards, precautionary measures and other steps aimed at eliminating work health and safety risks including immediately notifying the airports representative in writing of any such risk. There is a requirement to keep records and to make reports, carry out inspections and undertake "urgent action" where required. 2. Clause 7 sets out the obligation of the contractor to comply with every direction given, which must be in writing, including compliance with "all Australian Standards applicable to the services, including any changes to those standards that may occur during the term", and in particular an obligation to "carry out all inspections and tests" required by the contract or otherwise necessary to ensure that the contract obligations were met. 3. Clause 8 sets out that, in relation to any defects, the first defendant had the ability to control the second defendant and order compliance. 4. Clause 9 required the second defendant to provide all necessary plant and equipment to perform the services. 5. Clause 17 gives the first defendant the capacity to audit and inspect the second defendant's work.
Attached to the contract is a specification of the scope of work and technical requirements. These sets out the facilities to be cleaned in terms of a detailed list of buildings within the domestic terminal precinct (see part 3). The relevant entry for building 631A (item 13 in part 3; exhibit A, page 448) is described on page 498 of exhibit A as: "clean bathrooms as per bathrooms specification". That specification is: "Thoroughly sweep, wash and dry floors using germicidal detergent. Attention to be paid to edges and corners. Safety signage must be deployed when floors are wet. Drain covers to be clear and clean."
Clause A20.3 is of particular importance, as it sets out slip resistance provisions requiring Assetlink to agree that the building code required that all flooring be slip-resistant. In addition, Assetlink was responsible for carrying out cleaning in such a manner and to take such other steps necessary, including the application of nonslip product, to ensure that all the flooring was compliant at all times during the term of the contract with the requirements of the building code of Australia for slip resistance.
The full text of clause A 20.3 is as follows: "(a)The Contractor acknowledges and agrees that: (I) the Building Code of Australia requires that ail flooring be slip resistant; and (ii) it is responsible for and must carry out cleaning in such a manner and take all other steps necessary, including the application of non-slip product, to ensure that all flooring is compliant at all times during the Term with the requirements in the Building Code of Australia for slip resistance. (b) Without limiting its obligations in clause A20.3(a), the Contractor must carry out the following slip resistance tests in accordance with AS3661. AS4663 and AS4586 (as applicable) on the representative floor areas and at the frequencies specified in the table below. Floor Test Representative Floor Area Frequency Aerobridge Floors Dry n/a every 2 years Food Courts Wet 5 sample locations per food court every 3 months Terminal Floors Dry 20 sample locations In the International Terminal every 3 months 10 sample locations in the Domestic Terminal

[8]

The Contractor must maintain records of the testing in the form of a report. The report must include a map showing the location of the areas tested. Copies of all reports prepared must be promptly provided to SACL's Representative. The Contractor must promptly notify SACL's Representative of any failures identified in the requirements for the floor to be slip resistant and promptly rectify any failures. (e) Without limiting its obligations in clause A20.3(a) above, the Contractor must: (i) when cleaning, comply with the applicable guidelines for any non-slip product (for example the guidelines for R10+ or Slip Stop) applied to the relevant floor, so as to achieve and maintain the required slip resistance for that flooring (which for the food court areas is a non-slip classification of "Pendulum Class X"); and (ii) within 3 months of the Commencement Date, strip and seal all terrazzo and vinyl / linoleum floors. This process must be repeated periodically in accordance with the Detailed Specification and otherwise as required to meet the requirements of AS3661, AS4663 and AS4586." [emphasis added]

The plaintiff argues that these provisions, while not specifically referring to the toilet area, effectively meant that should slip resistant tests in accordance with the Australian Standards applicable be carried out in the representation floor areas in A20.3(b) and A 2.4, as well as in the three nominated areas. There were additional provisions in relation to nonslip product and minimum frequency for services, as well as an inspection at least once a week (A27.1), all of which emphasise the degree of care required for the performance of duties by Assetlink.
These provisions need to be read in light of the cleaning specification provisions set out at a clause A2.4 of the specification: "The contractor must in general achieve the minimum level of cleanliness and standards of assets presentation set out below….. …………..All floors must be kept free of litter, dust, lint, stains, streaks, water marks, spots or soil at all times. The contractor must ensure there is no soil or build-up on floors following polishing/waxing activity. In particular, the contractor must leave all surfaces in a safe, dry, non-slippery condition to comply with relevant slip test standards notably AS 3661, AS4663 and AS 4586." [Emphasis added]
In addition, clause A2.5 provides: "The contractor acknowledges there may occur, from time to time, general issues that may create a safety hazard, such as water spills or build up of litter/matter and agrees that it must implement a system for promptly identifying and responding to spills and similar hazards (including any liquid on floors such as leaks from ceiling or equipment and rain water tracked inside a building) and immediately attend to the spill or similar hazard (including by providing appropriate safety signs and barriers) As part of resolving the issue, the contractor must ensure that the affected area is clean, dry and safe to use before opening it to the public". [Emphasis added]
Both defendants deny any breach of any contractual obligation relevant to the plaintiff's fall. Assetlink denies that it was obligated to carry out any slip testing of this area at all, arguing that the only areas to be the subject of slip testing with a three specifically nominated. It also denies that it was under any obligation to use any special nonslip cleaning equipment. SACL denies that slip testing was required in any areas of the building except those nominated, which would not include the taxi toilets.
I do not accept these submissions. The obligation to carry out slip testing and to apply anti-slip products to the taxi toilets is clearly spelled out in the highlighted sections of the contract. In addition, as the ACCC survey and the many complaints shows, the taxi rank toilets were a known problem area at all relevant times during the contract.

[9]

The effect of expiry of the contract

Assetlink points out that the plaintiff's injury occurred shortly after expiration of the contract between itself and SACL. The following submission is then made: "Assetlink concedes that it was continuing to provide services in accordance with scheduling and similar matters pursuant to the contract with SACL but disputes that other alleged obligations, including to effect insurance or to indemnify SACL, were enforceable as at the relevant date (and Assetlink says they have no effect in any event)." (submissions, paragraph 14)
The contract between SACL and Assetlink for the performance of cleaning services which was in force at the time of the plaintiff's injury has not been provided by either defendant. It seems unlikely that a safety conscious organisation such as SACL would not have a contract in place for cleaning, given the degree of care exercised in the drafting of the original contract. In the absence of evidence as to what the contractual relationship between SACL and Assetlink was, Assetlink cannot purport to tell the court what they say the agreement was without calling evidence and/or producing the relevant document.
A court may draw inferences where a party has a document relevant to the proceedings but fails or refuses to produce it: Allen v Tobias (1957 - 8) 98 CLR 367; Commercial Union Insurance Company of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389. This issue was considered in Stambolziovski v Nestorovic and Camanaro Prestige Properties Pty Ltd t/as Sydneyhome Real Estate [2015] NSWCA 332, where the disputed facts were whether the plaintiff slipped on water from a leaking toilet or from another (non-negligent) cause, namely while she was mopping the floor. At [56], Beazley P stated that the drawing of such an inference is an application of the principles in Jones v Dunkel [1959] HCA 8. It is an inference that may be drawn where a party fails to adduce documentary evidence that one would have expected that party to adduce and where the failure to do so is not satisfactorily explained.
I accordingly draw an inference that the terms of the contractual relationship between the defendants in place at the time of the plaintiff's injury are matters which would not have assisted their respective defences to the plaintiff's claim, which relies upon the highlighted clauses as demonstrating a requirement for use of special cleaning products and slip testing.
The failure of the defendants to provide a copy of the contract (if any) on foot at the time of the plaintiff's injury does not prevent me from making findings in relation to liability to the plaintiff under the contract which was in place until shortly before the incident occurred, by reason of the long-standing course of conduct of both defendants concerning compliance with the contractual provisions set out above.

[10]

Complaints about the state of the taxi toilets

Although the evidence suggests a large number of complaints, the documentary evidence is scant. This schedule is a compilation of the complaints in Exhibit A pp. 691-724 about cleaning issues over the three years prior to the plaintiff's injury: 12.8.13 5.14 pm: email from El Cheikh to Ron Elliott noting "Best we catch up and debrief on the toilet tour today with Kerrie and Sally." (Exhibit A p. 695) 13.8.13 2.35 pm: email from Elliott to El Cheikh and Boyd endeavouring to arrange a meeting, noting that in relation to the toilets there was no action as yet, "only people counters". (Exhibit A pp. 694-695) 13.8.13 3.09 pm: email from El Cheikh to Ron Elliott and Daniel Boyd questioning whether they should wait for recommendations from Asset Link.(Exhibit A p. 694) 13.8.13 3.24 pm: an email addressed to Pierre El Cheikh and Daniel Boyd from Ron Elliott, head of service standards, Sydney Airport Corporation (Tab 32), noting that the first defendant waiting for the second defendant's proposal: "I wasn't clear on the next steps - but if it is only waiting for an Asset Link proposal - let's wait for that then meet" (Exhibit A pp. 693-694) 13.8.13 3.33 pm: Pierre El Cheikh, manager ground transport Sydney Airport Corporation forwarded an email and copied into that email Daniel Boyd, who was the first defendant's representative in relation to the contract (Tab 27), noting Assetlink was to prepare a list of issues to be passed on to the local Imam, adding, in relation to the Taxi Tour Debrief that "There are no action [sic] as yet only the people counters". (Exhibit A p. 693) 9.10.13 Entry: "T2 Taxi Holding Bay right hand side toilet, washbasin is leaking all over the floor." (Exhibit A p. 691) 26.06.14 Email to "T2 First Response Team" and others, including Mr El Cheike, that there had been "ongoing complaints from Taxi Drivers regarding the cold water coming from the hand basins. The contractors checked and confirmed that only hot water was installed to the cleaners' wash room as part of the fitout last year. Can we review this area again with a view to upgrade the hand basin water to have hot water? If not then signage in the toilet block identifying cold water only as this is causing grieve [sic] to the cleaners getting abused." (Exhibit A p. 696) This email is the only document to identify a "T2 First Response Team" being in existence; no evidence was led about this. Nor is there any evidence about any "fitout" in 2013, although Mr Kelly stated during submissions that his clients had told him there was a fitoutin 2013 and this was why he erroneously stated this (in a passage of his submissions later withdrawn) in his written submissions. 9.07.14 Email addressed to both defendants showing 3 photos of faecal smears and one of graffiti in the taxi rank toilets (Tab 32). (Exhibit A pp. 697-700) 31.08.14 Entry: "HYD Taxi Rank Male Toilet overflowing on floor" (Exhibit A p. 691) 2.2.15 "Floor waste grate missing. T2. Taxi Rank Toilet Facility. Floor is always wet and the hinges are broken" (Exhibit A p. 691) 10.2.15 11.10 am: email from Environmental Health Officer, Alex Kiss, Public Health Unit, re a complaint from a taxi driver named Steve (Tab 32): "Advised that toilets are nearly always in a disgusting and filthy state. Solid waste matter is smeared over the seats and back of doors. And cups, paper litter, etc are often left in the toilet bowls causing blockages1". (Exhibit A p. 701) 23.02.15 Entry: "Domestic Taxi Holding Area - Male Toilets - 1 x urinal and 1 x pan." (Exhibit A p. 691) 25.4.15 3.53 pm email from Sydney Airport Customer Experience to Daniel Boyd: "The toilet block inside the waiting area for the taxis at the domestic terminals are always filthy, smelly with waste paper on floors etc. Why is it not kept clean? Leads me to also state that the food shop which is attached to the toilet block needs a health inspector to put a report in." (Exhibit A pp. 692 & 702) 28.4.15 Email to Daniel Boyd from Jasmin Halilovic: "Every day the cleaners are left to clean the below, I am not sure how this can be managed as the staff are getting upset" (photos showing faecal smears attached). (Exhibit A pp. 707-712) 29.4.15 4.51 pm email from Daniel Boyd to Pierre El Cheikh: "The attached complaint regarding Domestic Taxi Toilet has been received. Assetlink were directed to review the complaint and have provided the below images of faeces smeared on the cubicle walls in the facilities. This behaviour is unacceptable and we need to support the cleaners who have the disgusting task of cleaning the mess. Can you please let me know what action you can take to mitigate this behaviour so that I can advise Assetlink management." (Exhibit A pp. 706-707) 4.5.15 2.21 pm email copied into Pierre El Cheikh from Jill Lewis of NSW Taxi regarding the taxi rank toilets referring to the "very disturbing" email of 29 April 2015 regarding the state of the toilets in the taxi holding Bay. (Exhibit A pp. 704-705) 22.12.15 Sydney Airport advised the Taxi Council of improvements that have been made to the International Taxi holding Bay area which included an enclosed wash room adjacent to the prayer room (Exhibit A p. 777). The ACCC survey for 2014 - 2015 refers to a cleaning "problem" in the taxi toilets and to pending and completed upgrades of these toilets, although without differentiating between the international (which was upgraded by 22 December 2015) and domestic taxi toilets. No information about the material provided to the ACCC by SACL is available; the ACCC survey was produced under subpoena by the Taxi Council, not SACL. 29.02.16 Complaint: "Hi this is my second email about the toilet in Domestic Taxi Rank. Today I just been to toilet again and is the same unclean toilet. Especially pees basin. And all of the soap cases are broken. This is a health and safety issue" (Exhibit A p. 692). The previous email sent is unidentified. 26.4.16 11.25 pm: email from Asset Link to Daniel Boyd enclosing photographs showing the wet and filthy condition of the T2 taxi rank toilets. (Exhibit A pp. 717-724) 10.11 pm: email Pierre El Cheikh enclosing photographs of the "unacceptable" way the Sydney Airport Toilets are being treated by drivers. 2.5.16 "Please see attached graphic photos of the unacceptable way the Sydney Airport Toilets are being treated by drivers. This behaviour will not be tolerated and if it continues we will be forced to review the facilities we provide, not limited to closing them down and providing portables. Our cleaners should not be subjected to this." (Exhibit A pp. 716-717)

[12]

The state of the floor of the taxi toilets on 19 June 2916

The only evidence as to the state of the taxi toilets on the day the plaintiff was injured was the evidence of the plaintiff himself. No cleaning staff, including Mr Sameer Gurung, identified by the cleaning supervisor, Mr Raj, as the person who cleaned the taxi toilets on the day of the plaintiff's injury, were called.
Mr Mark Nunn (who was also not called) compiled a safety report which stated that cleaners had been called to clean the toilet floor after the plaintiff fell, and that the floor was noted to be wet. Where is the record of this visit? The toilet amenities schedule timecard dated 19 June records three of the four scheduled cleaning events of the day, as is noted in the expert report of Mr Wagstaffe, (Exhibit H, p. 31); the times noted are 6:15, 8:50 and 9:37. Mr Wagstaffe was not cross-examined about his conclusions concerning the inadequacy of these arrangements, and his conclusions as to what these entries mean, set out in paragraphs 76 to 78 survived the striking out of challenged portions of his report which resulted in the revised tender of this document. (One of the reasons I asked for a revised tender was because of my uncertainty as to the observation set out at paragraph 75 to 79 of Mr Wagstaffe's report, which included a reproduction of the timecard for the day in question.) Mr Wagstaffe noted he had not been provided with any other information or documentation, including information as to whether these times were in the morning or the afternoon, or represented the whole day, and opined that this was insufficient given the state of the toilets.
The explanation, given to me from the bar table for these times, on 6 May 2021 by Mr Kelly for Assetlink, was that the roster was for the afternoon period only. The morning roster had been withheld from production on subpoena as it was irrelevant. I understand that the entries for the other dates in the timecard is that these entries were irrelevant as well.
However, whoever masked these entries omitted to mask the entries for the afternoon of Saturday 18 June, which, as reproduction of this timecard below shows, is completely blank, which would mean, if I accept the entries for Sunday as a genuine business record as opposed to a document created for the purpose of this litigation, no cleaning occurred on the Saturday afternoon before the plaintiff's injury. I have no information as to what day cleaning occurred from 2 pm Saturday, 18 June 2016 up until the cleaning entry for 6:15 pm on 19 June, a little more than two hours before the plaintiff's injury. (The two entries for 8:50 pm and 9:17 pm postdate the plaintiff's injury, which occurred at about 8:30 pm; Mr Raj's explanation for these two cleaning events being so close together is set out below.) The night cleaning entry for 18 June 2016 is similarly deficient, as is set out below.
This lack of record of cleaning attendances is only the first of a series of problems arising from the documents tendered to the court in relation to the second defendant's performance of its cleaning obligations. What was provided is set out at pages 529 - 682 of Exhibit A. I was not provided with a copy of the subpoena but I assume, from the documents provided, that a request was made for cleaning rosters and timecards for the month prior to the plaintiff's injury.
It is my task to interpret these tendered records as best I can, which is difficult, for the following reasons. First, the Cleaning Roster for the period of 23 May 2016 to 20 June 2016 states that "SAWAR JA (JAH001)" and "Sabitra SH (SHA057)" are the cleaners for the morning shift and the afternoon shift of the taxi toilet respectively. Staff information records (Exhibit A p. 661) provide the full name of JAH001 and SHA 057 as Sawar Jahan and Sabitra Devi Sharma Subeidi, but neither of them is the cleaner who initialled on the toilet amenities schedule timecard tendered as recording the visits on the day in question.
Mr Raj, the cleaning supervisor called by Assetlink, said that the cleaning in question was carried out by the person who initialled "SG": "Q. Do you recognise those initials as being initials of Sameer Gurung? A. Yes it is. Q. Would those times that are recorded there, do you recognise the 6.15, 8.50 and 9.37 - A. Yeah. Q. --would they be consistent with what you'd expect to occur down at the taxi rank toilets? A. So mostly they, they have to go two times. It's around after, around 5 o'clock and 8 o'clock so if, if there is any issues inside the terminal so, yeah, that, that's the times we are looking for, yeah." (T 92 - 93).
Mr Raj's admission that "mostly" the cleaners have to go two times is significant. Whether or not two cleaning trips so close together were a regular occurrence, what this demonstrates is that, on the night in question, more than one visit by the cleaner was necessary after the plaintiff's injury because of the state of the taxi toilets.
The toilets were additionally to be cleaned by the night shift cleaner, Mr Dhananjay: "Q. If you just go over the page at 3, Mr Raj, that's the schedule for the night shift, correct? A. Yeah. Q. I think you've said there's a clean - what did you call it - in the taxi ranks on that night? A. Sorry? Q. Is there a particular type of clean that occurs? A. Detailed cleaning. Q. In the role description which of those people would do the detailed cleaning? A. So mostly it's a car park guy who is going over there. Q. So that would be in this case - A. It's Dhananjay." (T 93)
However, according to the Sydney Airport Daily Catch-up meeting for 19 June 2016 (Exhibit A, p. 581), "Dhananjay" was responsible for the car park, not the toilets.
Mr Raj stated that the detailed night cleaning shown in the photographs tendered as Exhibit 2 took place every night: "Q. If you have a look at that collection of documents, Mr Raj, are they photographs of the process of deep cleaning that you've just described that occurs in the taxi rank toilet block? A. Yes it is. It's detailed cleaning in the night, yes. Q. How often did that occur? A. Every night." (T 94)
I was not, however, directed to any evidence other than Exhibit A p.581 that deep cleaning occurred on the night before the plaintiff's injury. All I was shown was the photographs refer to at T 94. The deep cleaning occurred on the 10pm shift, so the night cleaning for 19 June 2016 would have occurred after the plaintiff's accident. The records stop at 19 June 2016.
It might be thought that production of over 150 pages of material represented a concerted effort by Assetlink to assist the court in understanding the nature and extent of the cleaning regime. That is not the case. Finding and interpreting documents of relevance was difficult, as the documents produced suffered from the following inadequacies: 1. Many of the documents had the date cut off (e.g. pp 532 - 534) or are undated (e.g. pp. 640 - 666). 2. As well as having no or no adequate date, spreadsheet documents were cut in half in the photocopying process where it was hard to tell which documents belong together (e.g. pp.535 - 554). 3. Some pages are blank (e.g. p. 555, 559, ) or have meaningless marks (e.g. 566 -570). 4. Some pages are just blank time sheets where the only difference is the typed shift code (e.g. pp. 571 - 638).
As is set out in more detail below, it was the plaintiff's unchallenged evidence that there were tissues as well as water on the floor when he fell. The incident report notes that cleaners had to be called after the plaintiff's injury and it is clear from the above records that once was not enough to clean the area. The nightly deep clean for 19 June had not yet taken place. Even if night cleaning did occur on the night before (18 June 2016), that is many hours of inaction for a floor which was so constantly wet, and where water-absorbent and water-retaining detritus such as toilet tissue was a feature, as the photographs tendered, as well as the plaintiff's evidence, demonstrate.

[13]

The plaintiff's evidence

The plaintiff, who was born in 1975 and came to Australia in the year 2000, is a married man with two children, who at the time of his injury as well as currently, has been employed at a takeaway food provider in the Qantas terminal as a supervisor/sales assistant. In addition to his 38 hours per week at this job, he worked as a casual taxi driver, averaging about 20 hours per week prior to his injury, according to his evidence in chief.
It was a Sunday, and the plaintiff had not been working during the day. He had commenced driving the taxi that night at approximately 5 pm or 6:30 pm (T 13). There is no suggestion that he was tired or preoccupied by his day job.
The plaintiff described the circumstances of his injury on 19 June 2016 in different terms to the diagram prepared by Mr Wagstaffe. The diagram set out that he had entered and turned to the right in the "mirror image" set of toilets and wash basins. He had in fact turned to the left and then proceeded to the basins, and he marked that spot on exhibit D. He said that the basin was on his left hand side as he entered the area and that he stood at the basin washing his hands, noting that the floor had water on it and there was there were tissues on it as well. After finishing washing his hands, he turned towards the toilet cubicles. As he turned, he fell down, slipping with his right leg, which caused him to fall to the ground so that his left side hit the ground first. He was assisted by other persons in the toilet, who called an ambulance.
The defendants challenge the reliability of the plaintiff as a witness (first defendant's submissions, paragraph 13.9) and submit his evidence on any issue of fact should be disregarded, ranging from his description of his footwear to the circumstances of his fall. His error in relation to the change of direction concerning the entering of the toilet is described as being "confused and internally inconsistent" (first defendant's written submissions, paragraph 13.11). I am asked to accept that he fell in the act of pivoting to turn away from the wash basin where he washed his hands before he took any steps, rushing his movements and simply losing his balance.
The plaintiff was an anxious witness who appeared, from my observation of him in the witness box, to be overawed by the court process. His correction of the direction in which he went after entering the toilet plays no part in the circumstances of his fall. His recollection of the fall, and whether or not he took a step beforehand, need to be seen in context of the circumstances of a serious injury.
One issue about which the plaintiff was not challenged was that he observed both water and tissue on the floor at the location where he was washing his hands: "Q. Had you noticed anything about the floor at that stage? A. The floor is all the time is water and there is a tissue all the time. Q. Having walked in, did you see that? You've said "all the time" but did you see it on that day? A. Yeah, yes." (T 15)
He said the state of the taxi toilets was such that he tried where possible to avoid using them: "Q. So what was wrong with the other [toilet]? Why didn't you use the other one? A. The other one like it takes a while, the very bad one, that it all the time is the water on the floor, everywhere, and it doesn't make ..(not transcribable).. Q, And how do you know that? A. Because I see that, you know, the - that is like a visible, like if someone go, they can see it." (T 21).
I accept the mechanics of the fall as described by the plaintiff, in that he slipped as he turned to go towards the toilets.

[14]

The evidence of the first defendant

Both defendants led evidence about the asserted absence of any evidence of prior falls in the taxi rank toilets.
Ms Rebecca Ashdown, the insurance claims and risk manager for the airport, was called to describe the counting system in use for determining the volume of use of the taxi rank toilet, as well as to confirm that no prior claim had ever been made in relation to a fall in the toilets in question. However, her evidence was that she was in fact aware of claims of falls in the toilets: "Q. As the insurance claims and risk manager are you aware that there are a variety of claims having been brought prior to 2016 against the airport for what are commonly referred to as "slip and falls"? A. Yes. Q. And those slip and fall claims, are they dealt with by your section? That is the insurance claims and risk section? A. Yes. Q. And in relation to those slip and falls do you understand in your experience of being at the airport prior to 2016 that a number of those slip and falls resulted from people alleging that they slipped on contaminated floors, is that correct? A. Yes. Q. Contaminated by water is that correct? A. Yes. Q. Are you aware that a number of claims were brought in relation to the toilets within the airport for slip and falls? A. The toilets more generally? Q. Yes? A. Yes." (T 78 - 79)
Ms Ashdown said that the claims prior to 2016 brought against the airport for slips and falls were dealt with in her insurance section. These included claims by members of the public as well as staff at the airport (T 80). The slips and falls arose from complaints of slipping on contaminated floors, including contamination by water (T 79) and, as is noted above, in relation to the toilets within the airport.
Mr Robert Cracknell, the acting senior manager of organisation at the airport, also gave evidence. He stated that there had been no prior reports of incidents at the taxi rank toilets, information he based on searches he carried out of the computer system.
The adequacy of the searches was challenged on the basis that he did not carry out any search in relation to contaminated floors, or for water contamination, although such searches might have been relevant. Although SACL brought an application to reopen the case to lead evidence in relation to contaminated floors and water contamination, searches described by Mr Andrews as being "obvious" (submissions, paragraph 66), this application was withdrawn.
Even if further searches and their results had been put before the court, the reliability of evidence of this kind is limited. Mr Cracknell is a senior manager, not a person dealing with claims or charged with the setting up and keeping of computer records. He has no personal knowledge of the claim system; he is simply an employee who was carried out computer searches of a general nature. Furthermore, Mr Cracknell's evidence is inconsistent with Ms Ashdown's admission that there were claims in relation to slips and falls as well as claims in relation to toilets.
Ms Ashdown's evidence was based on knowledge and information, however tenuously expressed. I prefer her evidence to that of Mr Cracknell.
In addition to challenging the adequacy of the searches carried out, Mr Andrews points out that the witnesses called by SACL were there to explain documents rather than to give evidence of going to the taxi rank toilet to ensure compliance with the contract for Assetlink, receiving notifications and complaints, inspecting the premises or otherwise ensuring compliance with work health and safety requirements and in particular the use of nonslip products. Evidence of the kind provided by Mr Cracknell, even if unchallenged, is of limited evidentiary value, as opposed to evidence of the kind Ms Ashdown, or the witnesses nominated by Mr Andrews as not having been called, would be able to give.

[15]

The evidence of Assetlink

Mr Raj was the cleaning supervisor. He told the court that there was a daily catch up meeting on 19 June 9, 2016, the day of the plaintiff's injury: "Q. Mr Raj, what's that document that you've got in front of you now? It's got a heading on, "Sydney Airport daily catchup meeting", date 19 June 2016? A. So this is showing that all description of the different, different staff members who work in the different, different areas so such as landside, Virgin side, food court and the different vendelors(as said) as well as Pier B so we, we call that, "Jetstar side." Q. Was this actually a document that was generated each day and you'd submit to SACL, Sydney Airports Corporation? A. Yes it is. We, we go through our site manager, and site manager goes to SACL, yeah." (T 88)
Mr Raj described the cleaners' names and duties as follows: "Q. Was one of the role descriptions set out there, did that incorporate someone going down to clean that toilet block at the taxi rank? A. Yes. In the, in the first document it say Nizan(?) lands, toilet at either landside and in the afternoon it's Sameer Gurung, it's same. Q. Hang on a second. HER HONOUR: What? KELLY Q. I just want you to go back to the front page? A. Yeah. Q. So you said, "Toilet arrival landside"? A. Yeah. Q. There are two of those. One's got an, "M", and one's got an, "F"? A. Yeah, M. Q. Is that for, "Male"? A. Yes, it is. Q. You're saying that for the morning shift - that says, "Morning shift"? A. Yeah. Q. What hours was the morning shift? A. It's starting 6 to 2 o'clock basic. Q. When we get there, what time did the afternoon shift start at 2? A. Yes it is. Q. It went until when? A. 10 o'clock. Q. And then there's a night shift went from 10 till 6, was it? A. Yes it is, please. Q. Was there an arrangement as to how many times the Assetlink cleaners would attend the taxi rank toilet block per day? A. Yeah, as per my knowledge it's four times in a day - two times in the morning, two times in the afternoon. Q. Did anything occur of a night time? A. Yeah. Detailed cleaning every night." (T 89)
Mr Raj initially gave evidence that the floor of the taxi toilet was cleaned with this frequency, but that it was wet again within 20 to 30 minutes of each cleaning round: "Q. From the time you started working at the airport, Mr Raj, had you become aware of there being any issues in relation to the taxi rank toilets? A. Yeah, we frequently we were getting the calls like, "It's dirty. It's - toilets are dirty. It's - floor is wet, 20 minutes late [sic]." Q. Did you during the course of your role as supervisor go down and have cause to look at it for yourself? A. Yes, so many times. Q. What was the sort of problem? You have described dirty and wet. What were the issues in the toilets? A. So the water's everywhere, floor wet and toilet papers on the floor. It's like mostly it's a wet and water's on the, over there inside. Q. Any issues with respect to rubbish and things being left in the toilets? A. Yeah, yeah, same one, yeah, same as I tell. Q. Any problems with bottles? A. Yeah, that's bottles everywhere inside the cubicle, outside cubicles, faeces marks on the wall." (T 95)
However, later in his evidence, Mr Raj admitted that in fact the floor was wet all the time. He blamed the taxi drivers, not the millions of other users, or the prayer room users, or the cleaning methods, for this: "Q. Did you see anything that gave you an indication of why there might be problems with the floor being wet in the taxi rank toilets? A. Yeah. I saw so many times like they, they are washing their feet inside the basins. They are cleaning their - themself inside the, from the basin and splashing water everywhere. Q. As far as you were aware was that primarily drivers, taxi drivers? A. Yes it is. Q. Were you aware of this being an issue that was raised with Sydney Airport Corporation? A. Yes it is. Q. To your knowledge was that issue then taken up by Sydney Airport Corporation with the Taxi Council? A. Yes. Q. On the occasions that you had to go down and check or went down and checked on the condition of the taxi rank toilets, did you walk on the floor when it was wet? A. Yes, it is." (T 96)
Mr Raj said he was unconcerned about slipping, as he personally did not find walking in the water on the floor to be slippery: "Q. What did you notice, if anything, about the traction, about whether or not the floor was slippery or not? A. No, I, I don't find the floor slippery. It's wet but not slippery." (T 96)
He denied receiving any reports about the floor being slippery, and then went on once again to contradict his earlier evidence about the floor being dry for 20 minutes: "Q. Did any of those cleaners ever make a report or complaint to you in relation to the slipperiness of the floor in the taxi rank toilets? A. No. Q. During the period that you were supervisor, and on the occasions that you went down to the taxi rank toilets, did you go down there on occasions within a short period after the toilets had been cleaned? A. Yes. Q. What if anything did you observe about the condition of the floors? A. Yeah, it's always wet. The floor is wet. So when I will go and check it that toilet after they clean I go in to check the floor is always wet over there. (T 97)
Mr Raj said the only instructions the cleaners were given was to mop the floor, even though, as a result, the floor was continuously wet and mopping made no difference: "Q. What role, what instructions were given to the cleaners who attended the taxi rank toilets in relation to dealing with water on the floors? A. So we have to mop that floor, close the toilet, mop that floor as much as dry we can. Q. From your experience in relation to the taxi rank toilets as supervisor when you're starting did that occur? That is did they go down, did your cleaners go and do that? A. Sorry, what? Q. Did they go down and mop up the floor? A. Yes it is. Q. Did you have personal experience in your role as supervisor in this job of observing the mopping up of this floor in the taxi rank? A. Yes. Q. From your observations was it possible, or did you ever see the floor totally dry after it had been mopped? A. No." (T 98).
Despite the limited number of complaints recorded as having been received, and provided under subpoena, Mr Raj said he complained constantly: "Q. So we can assume for years prior to 2016 the floors of these toilets were always wet? A. Yes. Q. Did you report that to anyone at Sydney Airport? A. Through manager yes. Q. How often did you report it to Sydney Airport? A. As my understanding I report it to my manager like so many times, maybe 15, 20 times. Q. And when you reported it did anyone ever ask you to go, anyone from Sydney Airport ever ask you to go back down to the toilets with them to inspect it? A. No. Q. Did your manager ask you to go down to the toilets with - A. Yeah. Q. --them and inspect it? A. (No verbal reply) Q. And how many times did you take your manager down to the toilets? A. Maybe ten times normal." (T 100)
Although slip testing is referred to in the contractual provisions, Mr Raj was not aware of any slip testing ever having been carried out: "Q. Tell me, as a supervisor if there's anything special to be done - A. Yep. Q. --in relation to the toilets - A. Yeah. Q. --do they come to you to arrange that? A. Yes it is. Q. So if for example somebody wanted to test the floor to see how slippery it was would they come to you to make those arrangements? A. No. Q. Had you ever in the time that you've worked out there between 2013 and 2016 seen anyone testing how slippery the floor is? A. I don't know. I-- Q. You've never seen that? A. No, I don't know. It's not my description, sorry, no. Q. So in all the times you've been down there you've never seen that happen? A. No. Q. Has anyone ever come to you and told you that it's about to happen? A. No." (T 101)
Mr Raj said he was not aware of there being any cleaning products of a nonslip nature, and that no such products have been used on the floor of the toilets: "Q. In relation to the floor itself when you do the mopping during the day is that simply a matter of wet mopping the floor? A. Yeah. Q. And getting as much of the dirt and grime and things off the floor as you can? A. Yes it is. Q. You've told us that the floor is always wet even after you've done the mopping? A. Yep. Q. Have you ever been asked in your position as a supervisor, or have you ever asked someone to put a special coating on the floor? A. No. Q. So do you know as a cleaner that there are certain products that you can buy which you put on the floor to stop it being slippery? A. Yes, but nobody asked me." (T 102)
Despite all these cleaning problems and complaints, other methods, such as cleaning at a greater frequency as occurred in other toilets, were not used: "Q. You are aware, and I think you said today, that often the floor of this toilet was filthy? A. Yep. Q. That was regular? A. Yep. Q. Every day? A. Yep. Q. And in relation to that is there any reason why as a supervisor you couldn't get someone else to do a more frequent cleaning? A. It wasn't required. They didn't ask us to do it. They just ask us to do that one, yeah. Q. If for example somebody had been down there a lot more often - A. Yep. Q. --then all the dirt and rubbish that was on the floor would have been moved, removed more often? OBJECTION(KELLY). FORM. LEGAL ARGUMENT. QUESTION WITHDRAWN Q. You are aware, are you not, that in the terminal itself, that is on the landside of the terminal, there are various toilets? A. Yeah. Q. And you're aware on the airside of the terminal there are various toilets? A. Yep. Q. And you are aware are you not that there is a requirement that special treatment be given to those toilets? A. Yep. Q. And what does that special treatment involve? A. Keep on cleaning. Q. More frequently than what you do out in the taxi toilet? A. Yes." (T 103)
Although the weekly report had special provision for "critical issues", this was not used to report the state of the toilet, even when the toilets were "filthy" because of faecal smears: "Q. You see on that report, down the very bottom, it's got "critical issues". Do you see the very bottom of the third page? A. Yep. Q. You've got that? A. Yep. Q. The critical issues, what was that there for? A. So if any major incident or any major thing happen so you put as a critical issues in that. Q. You consider the fact that the toilets where the taxis were, were constantly wet and constantly filthy was a critical issue? A. They already aware about that cycle. Q. Further up you've got "comments", do you see that? A. Yep. Q. What was that for? A. If you add something in that, put the comment about your shift, anything happened during that shift, any issues you can raise in that one. Q. And again, you put down there that the toilets were filthy again? A. Yes, could be. Q. But you didn't? A. No." (T 105)
Requests for more staff went unanswered: "Q. Did you ever ask anyone from your employer, Assetlink, to assign you more cleaners to deal with the toilets? A. We tell SACL regarding that but they did not come back to us. Q. When did that happen? Before 2016? A. Yes. Before and after as well. Q. Any time that you went to the toilets of the taxi rank, you went there knowing that the floor would be wet, didn't you, because it was always wet? A. Yeah. Q. Therefore knowing that factor, did you ever give any extra instruction to any of the cleaners as to some other method of cleaning that they should consider? A. Mopping, yes. No other one. Q. But the mopping wasn't working, was it? A. No. Q. Do you understand that the requirements from the airport and please tell me if you don't know this. The requirements from the airport was that toilets were to be left clean and dry? A. I don't aware about that, no. Q. But certainly, the toilets at the taxi rank were never dry, were they? A. No." (T 107 - 108)
Mr Raj was the cleaning supervisor and would be expected to have some idea of the cleaning requirements set out in the contract. He denied all knowledge, as the above extracts from his evidence shows.
A common thread, running through all of Mr Raj's answers, is that none of this was his fault. Either he was not told, or not listened to, or it was not in his job "description", or someone else (such as the taxi drivers) was to blame. He was not even aware of there being any requirement from SACL that the toilets were to be left clean and dry (T 107 - 108). His explanation for being unconcerned about sipping in the constantly present water was that he did not himself find the constantly wet floor (which included water absorbent detritus such as toilet tissue, as the photographs demonstrate) slippery, an opinion the veracity of which I do not accept.
I do not regard Mr Raj as a witness of credit and do not accept his claim that he was unaware of the obligation to keep the toilet floor clean and dry. Nor do I accept his self-serving claim that he himself did not find the wet floor slippery. The contract his employers had with SACL was a carefully drafted document, the contents of which must have been made aware to the relevant staff, which would have included Mr Raj.
Mr Raj's knowledge was not limited to the domestic taxi toilets but, I infer from his knowledge of arrangements at other toilet facilities at the airport (for example, his evidence about other toilets being cleaned more often) the international toilets, and it is likely he would have been aware in such circumstances not only of the need for clean dry floors but of the "serious problem" referred to in the ACCC survey in relation to cleaning issues in the airport toilets. Whether he was aware of the renovation of the international taxi toilets in late 2015 is not the subject of any evidence but, given the reference in the letter at Exhibit A page 777 to the facilities being closed for a period of time, on the balance of probabilities, this seems more likely than not.
What I do accept, from Mr Raj's evidence, is that he complained many times about the situation, although none of these complaints figure in the list of complaints produced in answer to subpoenae. I also accept that Mr Raj asked for more cleaners and that SACL did not respond. I do so because Mr Raj's willingness to blame others for the constant wet and dirty state of the floor, in circumstances where I am satisfied he knew of the potential risks that this caused, meant that he was the kind of person who was likely to complain, so that others would be blamed and not himself.
Mr Andrews adds that, as well as not calling any witness at management level with knowledge of these contractual obligations, no witness was called who had in fact carried out slip testing at the airport, either generally or in the specifically nominated places, or who would have been in a position to ensure nonslip coatings and/or cleaning products were being used. He asked me to draw in relation to both defendants the assumption that such witnesses would not have advanced their respective cases, an assumption I am prepare to draw. This is despite Assetlink volunteering (submissions, paragraph 140) that it "did arrange the slip-testing at the specified locations and provided the reports to SACL as required under the Contract". There is no evidence before the court of this slip testing being done in the specified locations, or indeed at all although, as noted above, both defendants claimed that this occurred in their supplementary written submissions.

[17]

Mr Wagstaffe

The plaintiff relied upon a report of Mr Wagstaffe, dated 30 July 2019, which, broadly speaking, states that the plaintiff fell on a wet surface which exhibited a coefficient of friction which was less than that required for safe walking. He sets out that pursuant to HB197:1999, toilet facilities have a "pendulum rating of XX", which is higher than that required for other floors by reason of the nature of toilet facilities. In the present case, he considered the slip coefficient so low as to create a risk of one in 20 pedestrians potentially falling. Mr Wagstaffe opined that the construction did not comply with the Building Code of Australia 1996 (part 2.5) in relation to safe movement and access.
The report is acknowledged to contain limitations. At paragraph 10 of his report (Exhibit H), Mr Wagstaffe states that he had not visited the domestic taxi toilets where the plaintiff was injured and had not undertaken any slip resistance testing or other measurements of this location. He states that he was provided with a video dated 28 June 2016, photographs dated 28 June 2016 and again on 9 July 2018, all of which were taken by the plaintiff or others acting on his behalf. The only other document he had is a report of Dr Culvenor, who did attend the premises. He could only respond to the description of the premises set out in that report and was unable to answer additional issues, such as whether or not the tiles had a special covering to make them or slip proof (T 161).
I assume, from Mr Wagstaffe's description of the information with which he was provided, that he did not have access to information provided under subpoena by the defendant or the taxi industry.
Mr Wagstaffe did, however, have access to one document out of the material provided under subpoena, namely the toilet amenities schedule timecard for the day of the plaintiff's injury (Exhibit A, p. 529; Exhibit H, p. 31); however, his interpretation of this document is not a matter requiring any expertise.
There are other limitations in Mr Wagstaffe's report. He drew a diagram setting out where he said the plaintiff told him he fell; the plaintiff's evidence was that he fell in another location which is the on the opposite side of the toilet. In addition, large sections of Mr Wagstaffe's report were challenged, correctly, on relevance.
The combined effect of these limitations means that Mr Wagstaffe's report is effectively no assistance to the court.

[18]

Dr Culvenor

There are limitations in relation to Dr Culvenor's report as well: 1. It was prepared on 14 March 2019, before proceedings were commenced, and deals only with potential liability issues for SACL. 2. He was given frankly misleading information about the degree of water on the floor. He was told only that the floor was "often" wet as a result of users not using the hand dryers and filling water bottles (p. 197), creating an impression of a bathroom largely kept clean and tidy with droplets of water as opposed to the problem so graphically illustrated in the photographs tendered by the plaintiff. 3. He was told the toilets had been updated in 2013, which was incorrect. More significantly, he was not told about the toilet cleaning problem and proposed updates referred to in the ACCC survey, including the fact that the taxi toilet in the international terminal had been substantially updated to deal with the need for better prayer room facilities such as foot baths and a wider awning outside the toilet. 4. He was not told about the circumstances in which the tile floor was entirely removed at a date prior to March 2020, as shown in the photographs tended without objection by the plaintiff.
One aspect of his evidence is, however, of importance. As noted above, it was Dr Culvenor who carried out the slip test which resulted in a coefficient of friction of 0.29 when wet.
The first matter to determine is the challenge to the accuracy of this reading made by the defendants. Mr Talintyre sought to cast doubt on this result as being unreliable, for the following reasons (paragraph 4.18): "There is also a significant risk that the slip test is unreliable as to the condition of the tiles at the time it was carried out, or at least un-representative of the circumstances in which the plaintiff fell, due to it being carried out immediately after the floor had been mopped clean, with the inference to be drawn that wet soapy residue from the mopping process was still present on the floor when the slip test was carried out."
As Mr Andrews pointed out in reply (T 221), this is contrary to the evidence of Dr Culvenor, whose evidence was that he made sure the floor was both cleaned free of residue and dry before he conducted his testing.
What Dr Culvenor said in his report (Exhibit A, p. 207 - 208) was as follows: "A need for a friction test does not specifically arise out of the building code. A reasonable way to consider compliance is by reference to the materials used throughout history for walking surfaces. One of the dominant materials for a bathroom is ceramic tiles. It is reasonable on this basis. Nevertheless friction tests were previously conducted as noted in the instructions. There is a range of ways to measure friction. For example it can be done by directly measuring force as objects slide one over the other or by measuring the sliding angle when a surface is tilted. By one method or another the aim is to determine the ratio of (a) the forced to slide an object along the surface and (b) the force perpendicular to the service (e.g. the weight of the object on a level surface). This ratio is called the coefficient of friction. It is a dimensionless quality meaning that it has no units. This is because it is a ratio or percentage. It is one force divided by another. The coefficient is a property of two materials (and any contamination - thus three materials in that sense). We can't say material A has a coefficient of friction of XX. It is only possible to say that materials A and B against each other have a coefficient of XX. Four floors there is a standard method using an instrument known as a pendulum [AS 4663 - 2013 Slip Resistance Measurement of Existing Pedestrian Surfaces]. It evaluates rubbers intended to represent either shoes or car tires against another material."
Dr Culvenor then set out his testing procedure with some care: "The test was done with a pendulum instrument under clean wet conditions as that seems to be the relevant condition. It was done a clean and dry as well for reference. Conducting the test involves being on the floor on hands and knees. In the interests of hygiene I asked for the floor to be mopped before the test. I thought I may have to dry the floor in order to undertake the dry condition however it readily dried naturally. It was then wet to form a puddle at least as large as the slider strike (3" x 5") for each swing of the instrument in the wet condition. The results are shown in an appendix in more detail. They are of the order that would be expected. The coefficient of friction dry was 0.65 and wet it was 0.29." (p. 208)
Having read this careful account of how the test was carried out, I am satisfied that the reading of 0.29 accurately reflected the slip test when wet, and reject Mr Talintyre's challenge to its accuracy.
The next question is how to interpret this finding for a wet floor, and what the court is to make of the fact that the reading was not taken until two years after the plaintiff's injury. I accept the defendants' submissions that two years is a long period but, in the absence of evidence as to whether the process of degradation was gradual or exponential, it is the best evidence available.
Even with a reading of 0.29, Dr Culvenor concluded: "As discussed in the appendix on this topic a value indicated for motion would be in the range 0.1 - 0.2. In the case of walking a modest coefficient of friction is indicated as what would be demanded. Long strides and vigorous movement in the main are not consistent with the activity. It is a place most likely characterised by relatively moderate motion versus energetic acceleration.… The floor is fit for purpose when wet." (p. 208)
In his summary response (p. 211), Dr Culvenor adds: "Although the friction test was not required for compliance [with the building code of Australia], there was at the time as there is no standard for the measurement of the friction of tiles. Four new tiles at the time it was the 1999 edition of AS/NZS 4586. Like the standard used here AS4663 it sets out measurement methods for friction on the floor. The consideration of what friction is required depends however on the context."
However, Dr Culvenor's evidence is based on the mistaken factual information he was given that the only additional water on the floor came from persons filling water bottles or not using the hand dryers. In fact, the tiles are continuously wet and contained water absorbent tissue detritus and this was the situation constantly, apparently for years.
The Building Code of Australia is described by Dr Culvenor as the key compliance document; this requires that the floor be impervious to water and drain effectively. The tiles in question were a commercial tile of the kind that very often had a predetermined rate. They are not the smooth tiles that would be found in a commercial setting, although attempts to find a specification failed. Material surface can change over time; the tiles needed to be fit for the purpose "and they are in my opinion" (p. 211). However, this opinion is again based on the wrong information he was given about the extent of the wetness problem.
Significantly, given the failure to provide information about the proposed and completed updates to the international and domestic taxi toilets referred to in the ACCC survey, Dr Culvenor adds that, not only does the building comply but that there is "no explanation for this fall to be found in regard to the design or construction of this building" (p. 211). In his most recent submissions, Mr Talintyre acknowledges the reference to pending and completed updating of the facilities in this Survey, but does not address the issue of the failure to apprise his expert of the proposed and completed plans for update of both the international and domestic taxi toilets, including the carrying out of such updates at an unknown date in 2017, a year before Dr Culvenor's visit, or the circumstances in which the tiling floor was removed prior to 2020, leaving bare concrete. The result must be that Dr Culvenor's opinions are not based upon an accurate description of the facts and the evidentiary value of his report is very substantially diminished.

[20]

Conclusions concerning the experts' reports

Even if I read down the 0.29 reading as being made two years after the plaintiff's injury, I am satisfied that the lower range coefficient of friction would contribute to a higher risk of slip and falls, and that the relevant floor area did not comply with HB 197:1999.
I am also satisfied that a greater level of cleaning was required and that appropriate inspections would have provided ample evidence of a risk of injury or harm occurring to persons using the taxi toilets. However, the experts' views on this topic are as limited by the lack of information they had on this topic as to the updating plans of the first defendant.
The defendants pointed to a number of concessions made by Mr Wagstaffe in his evidence which they submit support the defendant's case: 1. It is not a matter of remark that any bathroom facility has water on the floor (T 203). It would however be a matter for remark if the floor was continuously wet for a period of years, and I also note the frequent complaints by the cleaners about not only dampness but also smeared faeces on the walls, the spreading of which might be assisted by water on the walls and floor. 2. The floor complied with the building code of Australia in terms of being waterproof and draining effectively (T 207). That is no answer to the dangers of a floor, particularly a toilet floor, being continuously wet and containing water-absorbent detritus such as toilet tissue. 3. The floor was made of typical and suitable material meeting hygiene expectations (T 207). That is no answer to the dangers of the floor being continuously wet. 4. A friction test is not required by the BCA (T 207). The terms of the contract govern the parties and, where the parties were aware there was a problem, they should have recourse to the procedures set out in the contract. 5. A range of 0.1 to 0.2 for the coefficient of friction was acceptable for a safety point of view (T 208). The contribution of the coefficient of friction to the slipperiness of the continuously wet floor containing detritus such as toilet tissue needs to be considered. 6. The floor was fit for purpose when wet (T 208). I do not accept that a floor continuously wet, especially where there is the complicating factor of tissue lying wet on the floor, as was noticed by the plaintiff when he fell, is fit for purpose. 7. People are inherently unstable when moving and fall over for a variety of reasons (T 209). I have accepted the plaintiff's description of his fall. I do not accept that people are inherently unstable when they are moving around. 8. The coefficient of friction alone is insufficient to gauge the safety (T 209). I agree that this is the case. The combined causes of the plaintiff's fall include that there was sufficient water and wet tissue on the floor in circumstances where the coefficient of friction of the underlying tiles was a factor, but not the sole factor. 9. The conditions as evaluated now were on balance favourable for providing for safe movement (T 209). I do not accept that a continuously wet floor containing wet toilet tissue is on balance favourable for providing safe movement. 10. The BCA, not the contract, was the key compliance document (T 211). If parties enter into a contract providing for steps to be taken which are not set out in the BCA, that does not exempt them from compliance with the contract. 11. The floor tiles were commercial tiles which very often have a predetermined safety rating and are not smooth tiles that would typically be found in a domestic setting (T 211 - 4). The general expectation with floor tiles is that they are likely to be dry most of the time, whether they are in a domestic setting or not. 12. There was no explanation for the plaintiffs fall to be found in the design or construction of the toilet block (T 211). As set out above, neither of the experts was provided with information about the proposed changes in design of both the international and domestic taxi toilets. I am satisfied that the changes in design were designed to resolve the ongoing wetness and cleanliness problems of the taxi toilets and as a response to what appear to have been a large number of complaints. If Mr Wagstaffe had been told about these, he may well have given a very different answer, as is also the case with Dr Culvenor.

[22]

The burden and onus of proof

Both defendants submit that the plaintiff has provided no or no sufficient evidence to establish the defendants were both on notice of the foreseeability of risks at the domestic taxi toilets, whether or not renovations carried out in 2015 at the international terminal taxi toilets occurred and whether or not these were not also carried out in the domestic toilets (in early 2017, information not provided under subpoena but disclosed by photographs (Exhibit A, P256) taken by a friend of the plaintiff at that time).
Discovery is not available in personal injury actions, which means that the parties must rely upon subpoena material. Complaints of failure to answer subpoenae either adequately or at all may be seen in many personal injury judgments and, on rare occasions, have resulted in court disapproval (see for example Attard v Hore [2002] QSC 437; El-Helou v Smith [2009] NSWSC 741).
What is the approach to be taken by the court to the discharging of the evidentiary burden in personal injury actions where the material is scant or there appears to be a bigger picture than that which has been disclosed?
Where the facts of complaint, foreknowledge, renovation and/or repair are essentially within the knowledge of the defendant, whose responsibility it was to maintain control of the premises, "slight evidence may be enough", as Dixon CJ noted in Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371: "[A] plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighted according to the power of the party to produce it, in accordance with the often repeated observation of Lord Mansfield in Blatch v. Archer [1774] Eng R 2; (1774) 1 Cowp 63, at p 65 [1774] Eng R 2; (98 ER 969, at p 970): cf. Parker v. Paton (1941) 41 SR (NSW) 237; 58 WN 189 ; Ex parte Ferguson; Re Alexander (1944) 45 SR (NSW) 64; 62 WN 15."
Mrs Crooks slipped on a wet and greasy substance in the defendant's toilet. The defendant led evidence of a system for cleaning which the plaintiff (who argued an attendant should have been in the toilet full-time) said was inadequate. The court did not accept these criticisms of the system for cleaning. In those circumstances, the plaintiff's failure to provide evidence that the defendant had actual knowledge of the substance being on the floor (or likely to be) was fatal. Dixon CJ considered that "very little evidence might have been enough" (at 371) but this did not relieve the plaintiff of her obligation to provide at least "slight evidence".
The court's willingness to accept "slight evidence" has been stated in many personal injury cases where the relevant facts are peculiarly within the defendant's knowledge. In Forbes Shire Council v Jones [1999] NSWCA 419 Handley JA stated at [27] that the facts relating to the doing of the work "were peculiarly within the knowledge of the defendants", adding that "slight evidence from the plaintiff would therefore establish a prima facie case and that case was not answered". In Sutherland Shire Council v Dietz [2004] NSWCA at [126] - [129], McColl JA not only referred to the principle with approval but noted the similar approach taken in the New South Wales Court of Appeal in De Gioia v Darling Island Stevedoring & Lighterage Co Limited (1941) 42 SR 1 at 4. (The difference in Dietz was that the defendant did lead evidence about the drain in question being self-cleansing, which evidence was not in dispute.)
Slipping cases have long been noted to give rise to particular difficulty. As Basten JA notes in Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at [35], in Shoeys Pty Ltd v Allen (1991) Aust Torts Rep 81-104, Priestley JA went so far as to suggest legislation to reverse the onus of proof (a suggestion never acted upon, but indicative of judicial recognition of the evidentiary difficulties in such case).
The principle applies to the failure to call relevant witnesses as well. Mr Andrews has asked me to draw inferences from the failure of the defendants to call witnesses with knowledge of these events (such as Mr Nunn), as opposed to persons who have carried out computer searches. This kind of information, and the witness who possesses it, would be very much within the knowledge of the defendants. In Baker v Norcross Pty Ltd (Ruling No 2) [2010] VSC 56 at [12], Kaye J specifically applied the principles enunciated by Dixon CJ in making a ruling that, insofar as Mr Baker was required to prove the availability of persons not called, it would only be necessary for the plaintiff to call "slight evidence" in order to satisfy the burden on him.
It is not uncommon for an inference to be drawn when the author of a report of a slip or fall is known but not called, in circumstances where the correctness of opinions as to what happened are relied upon. In Argo Managing Agency Ltd v Al Kammessy [2018] NSWCA 176 at [14], White JA considered such a ruling when the persons who signed the report were not called: "Mr Moelkhunthod and Ms Chankhuntod signed the report recording that the respondent slipped on water on the floor. Neither Mr Moelkhunthod nor Ms Chankhuntod was called to give evidence. The inference is available that their evidence would not have assisted the appellant in relation to the extent of the water on the floor at the time of the respondent's fall. A Jones v Dunkel submission was made at trial."
Underlying these concerns, there remains the essential requirement of determination on the balance of probabilities. In Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638, Deane, Gaudron and McHugh JJ said at 642-643: "A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred."
More recently, the standard of proof was explained in Curtis v Harden Shire Council [2014] NSWCA 314. At [182], the Court stated: "182 In Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104, Mahoney JA, in response to a submission in an occupier's liability slip and fall case that even if there had been a proper monitoring system, the plaintiff may still have been injured, Mahoney JA commented: "I do not think that such an argument should prevail in this case. The plaintiff's onus requires, not that she prove that the defendant's failure to monitor certainly caused her to fall; she is required to prove merely that it is probable that it did. The issue is therefore whether it is possible to infer that the absence of a system of monitoring probably caused the plaintiff to fall, that is, that a proper system of monitoring would probably have detected the vegetable matter on the floor before the plaintiff slipped on it." 183 In Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182, the appellant slipped when the tip of one of the crutches she was required to use came into contact with a greasy chip on the floor of a shopping centre in an area under the control of the respondent. As the plurality made plain, at [84]: "Woolworths' submission that it was necessary for the appellant to point to some evidence permitting an inference to be drawn concerning when the chip was deposited must be rejected. It was incumbent on the appellant to prove that it was more probable than not that Woolworths' negligence was a necessary condition of her fall, but this onus could be discharged by consideration of the probabilities in circumstances in which the evidence did not establish when the chip was deposited.""
In other words, in a case based on circumstantial evidence, a plaintiff, to succeed, must prove that the circumstances raise the more probable inference in favour of what is alleged. That evidence, even if "slight", is sufficient.

[23]

Section 5B of the Civil Liability Act 2002 (NSW)

Section 5B of the Civil Liability Act 2002 (NSW) provides: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless - (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) - (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
The provisions of the Civil Liability Act require the analysis to start with a risk of harm (Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752 at [104]-[107] and [119]. However, as Leeming and Payne JJA set out in Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 181 at [20], there is no single correct "risk of harm", and there are accordingly what their Honours describe as "leeways of choice between formulations that are more or less general or specific". In Coles Supermarkets Australia Pty Ltd v Bridge, "the perceived hazard was water" (at [11]), which gave rise to a series of potential risks. It is through the correct identification of the risk that one can assess "what a reasonable response to that risk would be": Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [59] per Gummow J.
This is how the plaintiff identifies the risk (submissions, paragraph 91), namely by identifying the risk of harm as being that the taxi toilet tiles, when contaminated with water (and detritus such as wet toilet tissue), created a not insignificant risk to patrons using the bathroom to be injured due to slipping or falling on tiles for which the coefficient of friction had fallen below the safety level.

[25]

The duty of care owed by each of the defendants

The duty of care in relation to SACL is that it was responsible for designing and maintaining the taxi toilets at the airport, and for enforcing a system of cleaning and inspection in circumstances where the tiles on the more less constantly wet floor had a coefficient of friction of 0.29, well below an appropriate reading for a bathroom floor.
Assetlink's duty of care arose from its contractual engagement for the cleaning of the said premises in order to keep them "safe, dry, non-slippery" (Clause A2.4).
In both cases, the content of a duty of care can never be adequately described in formulaic terms such as the taking of reasonable care to avoid a foreseeable risk of injury to a person in a situation of the plaintiff: Morgan v Owners of Strata Plan 13937 & Anor [2006] NSWSC 1019 at [32]. The duty of care must be identified with precision by reference not only to the relevant risk on the facts of the case in terms of its reasonable foreseeability and secondly what the reasonable person would have done in response to that risk. The risk must be at determined prospectively and not retrospectively. The question of what is reasonable will vary with the circumstances of the plaintiff's entry onto the premises.
An occupier is entitled to expect that an entrant will take reasonable care, and there is no duty to make the premises as safe as anyone can make them. The question of what is reasonably practical involves making a value judgment on the facts of the individual case.
Having identified the risk of harm in the context of the duty owed by the defendants to the plaintiff, what reasonable precautions in the circumstances should a defendant take? Such reasonable precautions are generally defined by considerations of the nature set out in Wyong Shire Council v Shirt (1980) 146 CLR 40, which requires the court to address the degree and magnitude of the risk, its degree of possibility and other relevant factors, with openness to a possible outcome that no response should be made, even though simple and cheap measures

[26]

Was the risk foreseeable?

The defendants (submissions 16 April 2021, paragraph 11) raise the issue of foreseeability.
The many complaints, the evidence of Mr Raj, the discussion between SACL and the taxi industry and the plans for renovation set out in the ACCC Survey all indicate that the risk was one which each of the defendants "knew or ought to have known" (Waverley Council v Ferreira [2005] NSWCA 418 at [34]). The evidence of Ms Ashdown and the conditions negotiated in the lengthy and carefully drafted contract are confirmation that the risk was more than merely foreseeable, but known.
Mr Andrews draws my attention to the following passage from Waverley Council v Ferreira: "42 As Bryson JA said in Doubleday v Kelly [2005] NSWCA 151: "The actual events as they happened are not the circumstances to which consideration of foreseeability of risk of injury is applied; what is to be considered is foresight in more general terms of risk of injury …" 45 The matters set out in s 5B(2), in substance, are a reiteration of Mason J's remarks in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. Mason J stressed that, in the context of breach of duty, foreseeability of the risk of injury and the likelihood of that risk occurring were two different things. His Honour said: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." Later, Mason J repeated (at 48) that the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. He said: "The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.""
Similarly, in Sibraa v Brown [2012] NSWCA 328 at [41]: "Section 5B requires risks to be assessed prospectively. As a matter of ordinary language a "risk of harm" relates to harm that has not yet happened. That is consistent with the requirement in s 5B(1)(a) that the risk of harm be "foreseeable", which happens when a person knows or ought to know that there is a risk that harm might arise in the future. The "risk of harm" to which s 5B(1) refers is harm that might be suffered by anyone to whom the defendant owes a duty of care, as a consequence of the failure to take the precautions referred to in s 5B(1)."
Looking at foreseeability from the perspective of a defendant who has been repeatedly advised the area is filthy, continuously wet and subject to vandalism (the hand dryers being noted as not working), is not an exercise in hindsight. Both defendants were aware, as the terms of their contract make clear, of the risk of claims made for persons slipping on floors contaminated with water and/or waste. Both the domestic and international terminal taxi toilet (Exhibit A p. 481) were required to be cleaned in accordance with the bathroom specification (Exhibit A p.319) and both defendants, I am satisfied, were aware of the work being carried out at the international terminal, which was to "include" a series of works which were intended to ameliorate problems of the kind shared by the domestic taxi toilets. The defendants submit that those renovations did not include replacing the tiles, but the use of the work "include" in this letter (Exhibit A, p777) and the removal of the tiles in 2020 mean that I should exercise caution in concluding that the tiles were not considered to be an issue.
A significant indication of the risk was the failure to keep the floor dry at all. Constantly wet floors raise risks, especially in a toilet where there are multiple sources of water, water-absorbent tissue and hygiene issues. It is not necessary for the risk to be defined strictly as a slip risk. A constantly wet toilet floor, even if safely tiled, raises risks, of which slipping is one.

[29]

Absence of prior incidents and obvious risk

As was observed in Fairfield City Council v Petra [2003] NSWCA 150 at [32], it is "trite law that although the fact that there was no evidence of prior falls on the subject steps is relevant, it is in no way determinative" (see also Francis v Lewis [2003] NSWCA 152 at [57]; Campbelltown City Council v Frew [2003] NSWCA 154 at [26]).
Somewhat inconsistently, SACL submits that the absence of any prior injuries or complaints can be tantamount to absence of notice of any defect requiring attention or warning, while at the same time submitting that the risk was obvious by reason of the state of the floor.
The first issue is whether there is in fact absence of any evidence of prior injuries. I have preferred the evidence of Ms Ashdown to that of Mr Cracknell, but is her evidence sufficient to discharge the onus? Applying the "slight evidence" principle, I am satisfied that there have been other slips in the toilets at the airport about which she was notified.
The absence of information about any other falls in the domestic terminal taxi toilets is, similarly, not determinative, although relevant to the determination of the degree of probability and occurrence of the risk. Generally, where plaintiffs suffer injury in such circumstances, it is because of a defect which does not have some recognisable connection with risk, such as a retractable seat in a cinema: University of Wollongong v Mitchell [2003] NSWCA 94. However, no one has ever suggested, in the many slip and fall cases arising from water or other substances being on floors, especially tiled floors, that the constant presence of water (and wet detritus) on a toilet floor over a period of years would have no recognisable connection with risk.
SACL alternatively submits that the constant presence of water constituted an obvious risk, and that there was no need to warn in much the same way that road authorities need not enlighten pedestrians about road perils. SACL submits that the obviousness and avoid ability of some risks means that even negligence on the part of an occupier is not a necessary condition of the occurrence of harm, nor is it appropriate for the scope of the occupiers liability to extend to the harm caused by the entrant because it is within the entrance means to avoid the risk entirely by taking reasonable care for their own safety.
The unchallenged evidence of the plaintiff and of the photographs taken on his behalf is that the presence of water and tissues on the taxi toilet floor was across most, if not all, of the floor. The submission that it was within the entrant's means to avoid the risk entirely by exercising reasonable care paints a picture of the entrant needing to use the toilet facilities having to tread carefully between the puddles of water and toilet tissue or alternatively not use the facilities at all, an unattractive submission given the nature of toilet facilities.
SACL refers to Lynch v Kinney Shoes (Australia) Ltd [2005] QCA 326, where McMurdo P stated: "People who do not look where they are going can inadvertently fall over obvious items anywhere; living is not risk-free and the community does not want or expect courts to attempt to make it so by imposing unreasonable and unrealistic standards."
Persons entering a public toilet at the airport are intending to use the facilities and are entitled to expect a proper level of hygiene and cleanliness, not a continuously wet floor with toilet tissue lying in the water. This is not an unreasonable or unrealistic standard. It is a basic requirement for any public toilet.

[32]

The plaintiff's shoes

The claim of negligence in relation to the shoes derives from the safety incident report, where a Mr Mark Nunn states that the plaintiff was wearing slip on shoes with a plastic soul and no grip. Mr Nunn was not called to give evidence.
The plaintiff tendered a new pair of the shoes which he says he was wearing on the day in question (Exhibit C). The shoes in question were, the plaintiff said, the shoes he regularly wore to work, in order to carry out his duties as a taxi driver.
The defendants submit that the tendering of the new shoes "has the suggestion of invention or fabrication to avoid the conclusion of fact offered by the safety incident report" (first defendant's written submissions, paragraph 13.8). The plaintiff is submitted to be an unreliable witness who may well have simply forgotten what footwear he was wearing. At the same time or alternatively, the defendants also point out that a plastic sole with no grip is more likely to slip than a rubber sole with grip, as was conceded by Mr Wagstaffe at T 162 - 163.
There is nothing cheap or casual in the make of these shoes to which my attention was drawn by any of the parties. They are not made in a loose casual fashion and are laced up, not slip-on. They are not thongs or plastic sandals of a casual kind.
The shoes were tendered in a plastic bag from the store from which the plaintiff bought them, which provided some additional information about the shoes, as did the box in which they were contained. These set out information that the shoe manufacturer is a respected Australian shoe manufacturing firm, and the material on the plastic bag refers to how long the company in question has been operating its stores.
Can it be said that the wearing of a pair of shoes available from a specialist shoe outlet amounts to contributory negligence by reason of the slippery nature of their soles? A similar argument failed at first instance and on appeal in Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149 (at [30]-[31], [55] and [70]). The plaintiff in those proceedings was wearing pink thongs. As noted at [54], the Court of Appeal did not consider that the wearing of thongs with smooth soles was remarkable "even in shopping centres".
I accept the plaintiff's evidence that he was wearing shoes in the same brand and style as those tendered, and that those shoes were reasonable footwear to be wearing when entering the toilet. I do not accept the observations of Mr Nunn, as I have had the benefit of seeing the shoes in question, whereas it is not clear from Mr Nunn's report whether he in fact attended and/or saw the plaintiff. There is a reference by him to the cleaners being "called" to mop the floor, but no suggestion that they arrive before the ambulance with the plaintiff left. The section for witness's names is left blank. Mr Nunn's observations are thus of no evidentiary value.

[35]

Quantum

The issues in relation to quantum are agreed to be as follows: "9 Did the Plaintiff sustain a compensable injury? If so: (a) What is the compensable injury or injuries? (b) How is the injury or injuries assessed by reference to the "most extreme case" for the purpose of determining damages for non-economic loss? (c) What is the amount of damages for non-economic loss? 10 Has the Plaintiff incurred any past out of pocket expenses over and above those paid by Medicare? If so, (d) What are those expenses? (e) What is the quantum? 11 Does the Plaintiff require ongoing treatment as a result of any compensable injury and will the Plaintiff continue to incur out of pocket expenses? If so, (f) What treatment does he require? (g) For what period is the treatment required? (h) What will the treatment cost him? 12 Has the Plaintiff sustained past economic loss as a result of any compensable injury? If so, what is the quantum of that loss? 13 Will the Plaintiff sustain an ongoing/future economic loss as a result of any compensable injury? If so, what is the quantum of that loss? 14 Does the Plaintiff have a residual capacity for work? If so, what is his residual capacity for work? 15 Has the Plaintiff required past domestic assistance as a result of any compensable injury? If so: (i) What were the services provided? (j) Did the service(s) provided comprise only gratuitous attendant care services? (k) Were those services provided for at least 6 hours per week and for a period of at least 6 consecutive months? (I) Subject to the above matters, what is the quantum to be awarded (if any) for that past domestic assistance? 16 Does the Plaintiff require ongoing/future domestic assistance as a result of any compensable injury? If so: (m) What services are required, and for what period? (n) Will the Plaintiff continue to receive gratuitous assistance, or will the Plaintiff require commercial domestic assistance? (o) Subject to the above matters, what is the quantum to be awarded (if any) for future domestic assistance?"
In practical terms, however, the main issue is the question of the potential for future osteoarthritic changes.

[36]

The plaintiff's medical evidence

Dr Endrey-Walder in his report dated 11 July 2019, describes the plaintiff as suffering a "serious" injury, noting that he had fallen heavily onto his left hip resulting in a fracture of the neck of the left femur. He underwent surgery on 20 June 2016, when Dr Horsley operated on him, introducing an intramedullary nail into the shaft of the femur, stabilised with two distal interlocking screws. After discharge he was prescribed Endone but a few days later changed to Panadeine Forte. After six weeks, Dr Horsley noted that the plaintiff no longer needed to use a crutch and recommended he slowly increased his walking. He underwent physiotherapy but continue to have residual pain in his left groin, especially during walking, as well as difficulty standing for longer periods of time without pain.
The plaintiff was certified as being fit for his pre-injury taxi driving by Dr Horsley on 15 September 2018. He complained to Dr Makarie on 11 October 2016 he suffered from left hip pain while sitting in the taxi driving.
There was certification for him to return to his pre-injury work for Cater Care on 27 October 2018. He continued in 2017 to complain to his doctor of left hip pain and, on 19 December 2017, bilateral hip pain, but was unable to recall any right hip pain since that time. He has regularly consulted his general practitioner to complain of pain at the left hip and, about a year later, in the left knee.
The plaintiff has returned to both his pre-injury sources of employment. He takes Panadol, Zyloprim and unrelated medication for diabetes.
The results of the physical examination by Dr Endrey-Walder (who described the plaintiff as "a kindly gentleman … who obviously tried his best to be helpful": Exhibit A, p. 797) was that the plaintiff was able to perform a very reasonable range of rotational movement at the left hip, similar to the normal right side. There is nothing wrong with his left knee. There was a question of the potential for a difference in the length of his limbs, which Dr Endrey-Walder measured at 1.5 cm (Exhibit A, p. 791) and would require orthotics, but this now appears to be agreed is not the case (T 121, 129).
Dr Endrey-Walder adds that "the injury to the neck of the left femur and the subsequent need for surgical intervention "could" eventually lead to the accelerated development of osteoarthritic changes at the left hip, which in the long term may well result in a serious consideration for a total hip replacement procedure." (Exhibit A, p 798)

[37]

Osteoarthritic changes

The question of osteoarthritic changes is the sole disputed medical question on quantum. A conclave held on 19 February 2020 between Dr Frank Machart and Dr Endrey-Walder came to the following agreed position: "it was also agreed that there is potential for him to develop osteoarthritis in the hip in the future. If that does happen, then he may be a candidate for a hip replacement. The cost of hip replacement at today's rate is $25,000." (Exhibit A, p. 791)
The following observation was also jointly noted: "Both experts agree that the plaintiff was off his taxi driving work for three or four months and he was off the airport job for five months after the injury. Subsequent to that we assessed him as fit for preinjury work and will continue to be so unless there are complications such as osteoarthritis, which would then limit his work capacity to various degrees including perioperative capacity if he needs to have a hip replacement." (Exhibit A, p. 791-792)
At the hearing, these doctors gave concurrent evidence together with Dr Maxwell, who stated (T 124 - 30) that there was only a chance or possibility (as distinct from a probability) of the accelerated arthritic changes foreseen by Dr Endrey-Walder and Dr Machart. Counsel for the first defendant submits that Dr Maxwell is "the best qualified medical expert, who has performed about 1000 similar surgical procedures" and notes that Dr Maxwell doubts that this change will ever occur.
Mr Andrews (plaintiff's submissions, paragraph 127) draws my attention to the radiology report, which states: "There is a comminuted intertrochanteric fracture of the left neck of femur. The femoral head and neck is rotated laterally relative to the femoral shaft."
The relevance of this is, however, unexplained.
In cross-examination, Dr Machart retreated to a degree from his previously expressed view and effectively said that he would not be surprised to see accelerated arthritic changes if you were examining the plaintiff at some time in the future. In those circumstances, whether the plaintiff requires hip replacement as a result of the injury, it can best be described as a chance of possibility only in circumstances where Dr Maxwell is confident that this will never occur by reason of the nature of the injury.
Accordingly, I have made no allowance for accelerated arthritic changes in relation to the assessment of noneconomic loss and future out-of-pocket expenses.

[40]

Past economic loss

Prior to his injury, the plaintiff was working full-time six or seven days of the week, in work which required him to stand and sit for prolonged periods. He continued to be able to do this work when he returned to employment after his injury. He did not take any time off sick from the fast food outlet at the airport for which he worked and he continued to drive taxis as before, although for a lesser number of hours. Although the defendants submitted I should find that the plaintiff only worked 10 hours per week as a taxi driver prior to his injury, I am satisfied from the financial material provided by the plaintiff that he worked for 20 hours described in his evidence in chief, and that he is currently driving his taxi for about 15 hours.
The plaintiff had a weekly income of $820 net at the time of his injury. He was absent from his employment for a total of 13 weeks. Allowing the rate of $820 per week, that adds up to $10,660 together with superannuation of $1172.60.
There is also a claim for the drop in income for the following financial year. For the financial year ending 30 June 2017, is net weekly income was $731, but it should be noted that workers compensation payments of $11,885.64 are included.
The sum claimed on behalf of the plaintiff is $11,885.64 including a component for Fox v Wood plus a diminution to account for other losses, which Mr Andrews estimates at between $7500 and $10,000. The defendants submit (submissions, paragraph 25.9) that no allowance should be made for Fox v Wood unless "the appropriate figure can be provided from the evidence". It is unclear to me what part of the calculation is the subject of challenge. As I have granted liberty to the parties to bring in short minutes of order reflecting the mathematically agreed sum to be awarded, any challenge to the plaintiff's estimate can be dealt with as part of that process and, if unresolved, referred back to the court for determination.
I am satisfied that the plaintiff has been fit for all forms of employment reasonably available to him, including the two jobs he held before being injured, and that he has remained so for the last four years. He has been working 38 hours a week while carrying out one shift a week driving a taxi. The slight fluctuation in the plaintiff's earnings between 2015 and 2017 may relate to the fluctuations which are an essential part of taxi work. However, given the plaintiff's complaint to his doctors about pain in the left hip when he is driving, it is also just as likely that the plaintiff's income fluctuations reflect his convalescence from an injury which Dr Endry-Walder described as serious.
Taking into account all of the above, and subject to any adjustment to the Fox v Wood component, I propose to award the sums proposed by Mr Andrews, namely $10,662 plus superannuation of $11,072.60 and a further $10,000 to reflect the drop in income in the following year.

[43]

Apportionment between the defendants

SACL cross-claims against Assetlink by reason of the terms of the cleaning contract set out above as well as by reason of Assetlink's asserted negligence. Assetlink denies the breaches pleaded but does not plead that the contract between them has expired (Defence, 5 February 2021). Assetlink's cross-claim against SACL (filed 5 February 2021) sets out a series of particulars of negligence which essentially repeat the plaintiff's arguments, to which SACL pleads denials.
The question of apportionment is to be determined in accordance with s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), which provides: "5 Proceedings against and contribution between joint and several tortfeasors Where damage is suffered by any person as a result of a tort (whether a crime or not): ... (c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought. (2) In any proceedings for contribution under this section 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"
As between several tortfeasors, the degree of responsibility of each will depend upon the relationship (in a broad sense) between the tortfeasors and the plaintiff, but also, as reflected in the reference in s 5(1) to possible indemnification, upon the relationship of the tortfeasors as between each other: Baden Cranes Pty Ltd v Smith [2013] NSWCA 136 at [77].
Assetlink submits (submissions, paragraph 154) that the majority of any liability rests with SACL. It was the owner/occupier of the building the taxi toilets in 2004, when the floor was laid. Problems with the tiles should not be left up to its to cleaning contractor. SACL had the capacity to control usage of the toilet block, including requiring a greater number of cleaning visits if required as well as being able to require that the floors be slip tested, or that anti-slip products be applied, or (as I have found happened prior to March 2020) to change the floor if that was appropriate. There is no evidence SACL ever raised any issue about compliance with the cleaning contract.
SACL submits that the (expired) contract between the defendants enlarged the scope of Assetlink's duty to the plaintiff, because of the delegation to Assetlink of all relevant aspects of SACL's duty as occupier (supplementary submissions, paragraph 3.3). Assetlink's duty to the plaintiff is not confined to an examination of the parties' contractual obligations for this reason, as Assetlink effectively controlled the cleaning of the subject floor and was in the best position to identify any with relevant hazards. Interestingly, paragraph 34 of the SACL cross-claim interprets Clause A20.3 to require that the floor be slip resistant in accordance with the requirements in the BCA for slip resistance.
SACL disputes the submission that Assetlink's responsibility was confined to carrying out for cleaning periods today, adding that this was a minimum requirement under the contract. There was a contractual obligation to do more if the circumstances required it.
As previously noted, neither of the defendants has elected to put any evidence before me of the contractual arrangement between them which was in place at the time of the plaintiff's injury. SACL submits that without evidence that either party expressly disclaimed any particular term after expiry of the contract, I should continue to hold both defendants to the entire bargain struck (supplementary submissions, paragraph 3.6) and ignore the "pejorative adjectives" applied to the contract by Assetlink. SACL also submits that Assetlink should have called evidence as to whether a reasonable businessperson would interpret the contract terms "any differently than as advocated by SACL" (supplementary submissions, paragraph 39), a submission I reject: Toll (FGCT) Pty Ltd v Alphapharm (2004) 219 CLR 165 at [35]. The parties' submissions about insurance (first defendant's supplementary submission paragraph 151; Assetlink's supplementary submissions, paragraph 46) are similarly misconceived by both parties.
As to the negligence issues in the cross-claims, most of the relevant conduct occurred during the period in which the contract was on foot. In the absence of evidence of some supervening event in the one month prior to the plaintiff's injury, the parties' respective duties to the plaintiff made be determined in accordance with those obligations as well as with the evidence of the many complaints made about the state of the taxi rank toilets at the domestic terminal as well as the information (scant though it may be) about SACL's planned upgrades to the taxi terminal toilets as set out in the ACCC survey.
SACL submits that the cleaners who attended the premises, day in day out, were in the best position to understand whether any relevant risk of harm existed, notify anybody necessary about that risk of harm and implement any necessary precautions, including slip testing, arguing that for all relevant practical purposes, Assetlink was effectively the occupier of this toilet block.
The long and sorry saga of complaints about the domestic taxi toilet's continuously wet floor for what appears to have been the whole of the contractual period for the cleaning contract does not require repetition. The floor was not only continuously wet, but there was water-retaining detritus such as toilet paper on the floor, as the photographs demonstrate, as well as smears of faecal matter (although the precise location of the faecal matter on the occasions when it was seen, other than in the photos, is unclear; I note the references to blocked toilets in some complaints). Assetlink's repeated complaints to SACL went unheeded.
SACL initiated a program of "updating" the international terminal toilet and went so far as to threaten to shut down the domestic terminal toilet before carrying out renovations of an unspecified nature which I am satisfied included the removal of the tile floor entirely at some stage.
The time sheets for the day in question demonstrate the inadequacy of Assetlink's cleaning regime: Strong v Woolworths Limited [2012] HCA 5.
Taking all of the above into account, I am satisfied that both defendants are equally responsible. SACL knew there were problems with the design of the toilets as well as with the adequacy of the cleaning regime, as the ACCC survey demonstrates. The remaining 50% should be borne by Assetlink by reason of its failure to comply with contractual obligations in circumstances where it was obvious that risks were created by a continuously wet and frequently filthy toilet floor which appears to have been cleaned in a haphazard fashion on the day of the accident.
Should these findings be varied by reason of the grounds set out in the cross-claims and, in particular, by reason of contractual obligations asserted to be owed between the defendants? SACL submits that if it is liable, Assetlink is required to indemnify it under the contract between the parties on foot until 23 May 2016, about a month before the accident. Assetlink dispute this claim on the basis inter alia, that the contract between them was no longer on foot at the time.
As previously noted, neither party tendered the contract or called any witnesses concerning its operation and contents. The contract which was tendered expired about a month before the plaintiff suffered his injury. The contractual terms applying at the time of the plaintiff's injury in terms of contract issues such as insurance are, as Assetlink points out, unknown.
I am satisfied that, if evidence had been led, the same factual material which led to my determining that each of the defendants was equally liable would apply in any event and accordingly I would still apportion liability equally between the defendants.

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Judgment (46 paragraphs)

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Legislation Cited (2)

Cases Cited (36)