Glad Retail Cleaning Pty Ltd v Alvarenga

Court of Appeal (NSW)|2013-12-11|Before: Barrett JA, Gleeson JA

Background 15In this section of the judgment, I give my reasons for dismissing Mirvac's motion. However, it is first necessary to set out the circumstances that led to Mirvac filing its motion. The circumstances are recounted fully by Emmett JA in the Extension Judgment. What follows is an abbreviated account. 16On 23 April 2013, Mirvac paid to the Plaintiff's solicitors the sum of $90,730.19 in purported satisfaction of the judgment against it. The cheque was presented by the solicitors the following day. They subsequently released to the Plaintiff $15,000 of the sum paid by Mirvac, in order to enable her to pay arrears of mortgage instalments. The balance has been retained by the solicitors. 17On 24 April 2013, Glad Cleaning filed a notice of intention to appeal and on 27 June 2013 filed its notice of appeal. Mirvac was joined as a respondent to the appeal. 18Glad Cleaning's notice of appeal did not seek to appeal from the judgment against it on Mirvac's cross-claim. It stated that Glad Cleaning appealed "from part of the decision below, being an appeal on primary liability and contributory negligence". As Emmett JA pointed out in the Extension Judgment, at [6], theoretically that meant that even if Glad Cleaning succeeded on its appeal, Mirvac would retain the benefit of its judgment on the cross-claim. Nonetheless, as his Honour also explained, since Mirvac's judgment on the cross-claim was founded on the assumption that both it and Glad Cleaning were liable to the Plaintiff, Glad Cleaning was implicitly impugning the judgment in favour of Mirvac on the cross-claim. Even so, Mirvac's solicitor did not appreciate that a successful appeal by Glad Cleaning would leave Mirvac liable to pay the whole judgment in favour of the Plaintiff. 19On 30 July 2013, the Plaintiff's solicitors demanded that Mirvac pay the balance of the judgment sum awarded against it. Even then, it appears that Mirvac's solicitor did not appreciate that Mirvac was liable under the orders made by the primary Judge to pay the Plaintiff the whole of the judgment debt, although it had the benefit of a judgment against Glad Cleaning on Mirvac's cross-claim. 20On 12 August 2013, Glad Cleaning filed a notice of motion seeking a stay of the judgment against it. On 26 August 2013, McColl JA granted the stay until the determination of Glad Cleaning's appeal: Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 289. 21It was not until 22 August 2013, pending the hearing of Glad Cleaning's motion, that Mirvac's solicitor realised that if Glad Cleaning's appeal succeeded, Mirvac would be liable to pay the whole judgment debt without any recourse to Glad Cleaning for a contribution. On that day, Mirvac applied to McColl JA for a stay of the judgment against it and on 26 August 2013, her Honour granted that application. She also directed Mirvac to file a motion seeking an extension of time in which to file a notice of appeal. Mirvac filed its notice of motion on 28 August 2013. 22On 27 September 2013, the Plaintiff's employer, Woolworths Ltd, wrote to her stating that as she had received both compensation under the Workers Compensation Act 1987 ("WC Act") and damages from Mirvac, it proposed to terminate her compensation payments pursuant to s 151Z of the WC Act. The letter also stated that Woolworths Ltd was entitled to full recovery of all moneys paid to the Plaintiff by Mirvac, unless the verdict was wholly overturned.

The Submissions 23In written submissions filed on 23 October 2013, Mirvac contended that its failure to file a notice of appeal within time was due to an error by its solicitor and that the Plaintiff would suffer no prejudice if Mirvac was granted an extension of time. Mirvac also submitted that, had it complied with the time limits specified in the UCPR, it would have had until 25 July 2013 to file its notice of appeal. On this basis, it was only four weeks or so late when it filed its application for an extension of time. 24In response, the Plaintiff relied on the payment of $90,730.19 to her legal representatives on 23 April 2013. She contended that the effect of this payment was that she became liable to repay out of the moneys she received from Mirvac the amount of workers compensation she had received from her employer and would be unable to claim any further workers compensation payments regardless of the outcome of any appeal by Mirvac and Glad Cleaning. This consequence was said to flow from s 151Z(1)(b) of the WC Act. Section 151Z relevantly provides as follows: (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: (a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation, (b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation, ... (4) If a worker is liable under subsection (1)(b) to repay any money out of damages recovered by the worker, the worker is not liable to repay the money out of any damages payable after the date of recovery by way of periodic or other payments for loss of future earnings or earning capacity or for future expenses. 25The Plaintiff submitted that the unconditional payment by Mirvac of $90,730.19 to her legal representatives constituted "damages" for the purposes of s 151Z(1)(b) of the WC Act. It followed that the Plaintiff had received compensation under the WC Act from her employer and had then recovered damages from Mirvac. Accordingly, she was obliged by s 151Z(1)(b) to repay out of the damages she had recovered the amount of compensation received from her employer (totalling about $150,000) and was entitled to no further compensation from her employer under the WC Act. 26Mr Parker SC, who appeared with Mr Greenlaw for the Plaintiff, contended that if Glad Cleaning and Mirvac succeeded in their appeals, the Plaintiff would suffer irremediable prejudice. This was because she: (i) would lose her right to continuing compensation from her employer or, at the least, face uncertainty as to whether she could contest her employer's assertion that it was no longer obliged to pay her compensation; (ii) would have to repay Mirvac the moneys she had received from it; (iii) alternatively to (ii), if she did not have to repay Mirvac (for example because of a condition attached to the grant of an extension of time), she would still have to pay to her employer the amount of damages she had recovered. 27Mirvac did not dispute that if its payment to the Plaintiff constituted the recovery of damages by her for the purposes of s 151Z(1)(b) of the WC Act, she would suffer irreparable prejudice if Mirvac was granted an extension of time in which to file an appeal. Mr Maconachie QC, who appeared with Mr Reynolds for Mirvac, submitted, however, that s 151Z(1)(b) was not enlivened, for two reasons:

First, Mirvac's cheque was merely a conditional payment which could not amount to the recovery of damages until the cheque was presented. The presentation of the cheque was a voluntary act by the Plaintiff for which she (or her solicitors) and not Mirvac was responsible.
Secondly, on its true construction, s 151Z(1)(b) of the WC Act applies only where the worker receives the whole of the damages to which he or she is entitled. Since the Plaintiff only received a portion of the damages payable by Mirvac, she had not recovered damages within the meaning of s 151Z(1)(b).

Reasoning 28In support of his first submission, Mr Maconachie cited the observations of Campbell JA (with whom Barrett JA and Sackville AJA agreed) in Wardle v Agricultural and Rural Finance Pty Ltd [2012] NSWCA 107, at [159] ff. These observations were concerned with the question of whether the acceptance of a cheque amounts to a discharge of the debt or whether the giving of the cheque amounts to a conditional payment. The Plaintiff in this case presented the cheque and it was met on presentation. Nothing said in Wardle or in the cases discussed by Campbell JA sheds light on whether the Plaintiff recovered damages from Mirvac within the meaning of s 151Z(1)(b) of the WC Act. 29In Smith v The Commonwealth Oil Refineries Ltd [1938] HCA 33; 60 CLR 141, the issue was whether the receipt of weekly sums as compensation meant that the plaintiff in that case had "recover[ed] compensation" within the meaning of the relevant Queensland legislation, even if the full amount of compensation had not been paid. Latham CJ, with whom Rich, Starke and Dixon JJ concurred, said (at 147) that "recovery for the purpose of such a provision as this means receipt of moneys". It followed (at 147-148) that if the plaintiff received a sum of money which was paid as, and received as, compensation, he had recovered compensation under the Queensland Act. Similarly, in Watson v Newcastle City Council [1962] HCA 6; 106 CLR 426, at 445, Windeyer J said that the word "recover" in the predecessor to s 151Z(1)(b) of the WC Act meant the actual receipt of moneys. See also Abdulle v QBE Insurance (Australia) Ltd [2010] NSWCA 60, at [11]-[14], per curiam. 30The Plaintiff (or her solicitors on her behalf) accepted the cheque tendered by Mirvac and presented it for payment. The amount of the cheque was duly received by the Plaintiff or for her benefit. The money was paid by Mirvac in discharge, or partial discharge, of its liability to pay damages to the Plaintiff and was received by her as damages. Subject to Mirvac's construction argument, the Plaintiff "recover[ed] damages" within the meaning of s 151Z(1)(b) of the WC Act. 31Mirvac's second argument focussed on the expression "those damages" in s 151Z(1)(b) of the WC Act. According to Mr Maconachie, that expression refers to the chapeau to s 151Z(1), which applies the sub-section if the injury was caused in circumstances "creating a liability in some person other than the worker's employer to pay damages in respect of the injury". Mr Maconachie submitted that s 151Z(1)(b), when it speaks of the worker recovering "those damages", means the whole of the damages to which the worker is entitled from a person other than the employer. Thus if a worker receives only a portion of the common law damages to which he or she is entitled (as in the present case), s 151Z(1)(b) has no operation. 32Section 151Z of the WC Act has two purposes: The first is to deal with the potential for double recovery by the worker who is entitled both to workers' compensation and to common law damages from a third party tortfeasor in respect of an injury. Secondly, it provides for the workers' compensation insurer to recover any payments of compensation from a third party tortfeasor responsible for the damages. Abdulle v QBE Insurance, at [6]. 33It is difficult to see how s 151Z(1)(b) can prevent double recovery by a worker if it operates only when a worker receives the whole of the damages payable by a third party tortfeasor. On Mirvac's construction, if the worker recovers all but five per cent of a damages award of $500,000, he or she is under no obligation to refund any part of that award to the employer's insurer. Yet if the worker recovers the entire award, full reimbursement must be made (to a maximum of $500,000). 34The language of s 151Z itself makes it clear that Mirvac's construction cannot be correct. Section 151Z(4) deals with the case where a worker is liable to repay moneys out of damages he or she has recovered, but damages are payable after the date of recovery by way of periodic or other payments for loss of future earnings or earning capacity or for future expenses. In that situation, the worker is not liable to repay moneys out of the damages payable after the date of the recovery. 35As was pointed out in Abdulle v QBE Insurance, at [16], s 151Z(4) is designed primarily to deal with structured settlements under provisions such as s 81 of the Motor Accidents Act 1988 and s 22 of the Civil Liability Act 2002 ("CL Act"). The point for present purposes is that s 151Z(4) plainly assumes that s 151Z(1)(b) operates where a worker has recovered some, but not all damages payable by the third party tortfeasor: that is, the fact that the worker has not yet recovered damages payable in the future for loss of earning capacity or future expenses does not prevent s 151Z(1)(b) from requiring the worker to reimburse the employer's insurer out of the damages that the worker has actually recovered. 36The payment by Mirvac to the Plaintiff of part of the damages award enlivened s 151Z(1)(b) of the WC Act. The consequence is that the grant of an extension of time to Mirvac to file a notice of appeal, depending on the outcome of the appeal, could cause irremediable prejudice to the Plaintiff. It was for these reasons that the Court refused leave.

The Scene of the Accident 37The primary Judge noted (at [6]) that the accident was plainly visible on CCTV footage. The footage was played to this Court by Mr Sexton SC, who appeared with Mr Priestley for Glad Cleaning. 38The photographs in evidence also assist in understanding what occurred. The photograph reproduced below shows the inverted U-shaped rubber bubble tiled section of flooring almost surrounding the entrance to the travelator on the left of the photograph. A fixed metal strip is positioned between the rubber section and the travelator. 39The travelator is a modular structure consisting of sections known as pallets. The accident occurred after the Plaintiff stepped onto the travelator, which was descending. Unlike an escalator, a travelator does not have steps, but is effectively a moving walkway. The travelator was constructed with a gradient of twelve degrees to the horizontal. This was the upper limit of the permitted gradient specified in a 1996 Interim Australian Standard: Lifts, Escalators and Moving Walks (AS 1735.6(Int)) and recommended in a 2008 report prepared by the Monash University Accident Research Centre commissioned by the Australian Building Codes Board.

The Primary Judgment 40The primary Judge found (at [8]) that the Plaintiff attempted to step over the rubber section, but with limited success because of her short stride. One of her feet made contact with the rubber section, although the contact was "small". The slip occurred almost immediately after the Plaintiff stepped onto the travelator. As she slipped, the Plaintiff attempted to take hold of the handrail to her right. 41His Honour accepted (at [11]) evidence of the cleaner, Mr Dahal, that the "floor" was wet and that the Plaintiff appreciated that it was wet, as she walked carefully on the floor. As she did so, she said "Oh, it's wet". 42The primary Judge found (at [20]) that not only was the rubber section wet, but that water had been allowed to go onto the steel section leading to the travelator. He also found that there was a "significant amount of water in the [Plaintiff's] path" (at [14]). She picked up moisture on her shoes on the way to the travelator. This resulted in her slipping when the wet shoes came into contact with the moving metal surface of the travelator pallets (at [13]). There had been a good deal of expert evidence, from which his Honour derived "little assistance" (at [36]). But he accepted one expert's opinion that "the pallet surface was slippery when wet" although he thought that conclusion was little more than an application of common sense. 43Mr Dahal said that the rubber bubble section he had mopped was slippery (at [18]). He also said that the Plaintiff was the first person to use the travelator that day, but he accepted that he gave her no warning and did not suggest to her that she wait until he had finished cleaning the area. 44The primary Judge recorded the evidence of Mr Shambanna, the Chief Operating Officer for Glad Cleaning, that "Carmen", the Centre Manager, had given instructions that the Centre was not to be cleaned outside opening hours (at [24]). It is not clear whether his Honour accepted that such instructions had in fact been given. In any event, his Honour considered (at [25]) that, since it was the cleaner's responsibility to turn on the travelator in the morning, there was no reason why the cleaner could not have attended to the travelator area before it was switched on. 45The primary Judge held (at [37]) that Mirvac's duty was that of an occupier, namely to take reasonable care to avoid a foreseeable risk of injury to the Plaintiff as a lawful entrant. Glad Cleaning was under a duty to take reasonable care to avoid a foreseeable risk of injury to persons like the Plaintiff. In his Honour's view (at [38]) this approach was consistent with s 5B of the CL Act. 46The primary Judge dealt with breach of duty as follows: 40. ... I am satisfied that the risk of harm to the plaintiff was foreseeable and the risk was not insignificant. I am further satisfied that a reasonable person in the defendants' position would have taken precautions against the risk. 41. Looking at Section 5B in more detail I am satisfied that a risk of a person walking through a wet surface and then onto a metal moving travelator (in a downward direction) and slipping was foreseeable. The tribological (lubricating) reaction between water and a hard surface is well known, and well known to create a slippery medium. I am therefore satisfied that the risk was not insignificant and that a reasonable person in the position of the defendants would have taken precautions against a risk of harm. 42. In respect of Section 5B(2) I am satisfied that harm was a significant probability if precautions were not taken. Allowing a person to walk through a wet surface onto the travelator is easily preventable. ... A person falling onto a hard metal surface is susceptible to significant injury and the burden of taking precautions, in my view, was not onerous. I do not think Section 5B(2)(d) is relevant here. 43. In relation to the precautions that could have been taken the cleaning could easily have been done before the centre was opened, the cleaner could have halted the plaintiff's progress and asked her to wait until he had dried the surface and he could have placed a 'no entry' or other warning sign in the path of the plaintiff, not only the one sign that is to be observed in the CCTV footage. I also think reasonable precautions would have included the roping off the area while it was being cleaned. I do not, however, take this into account as no questions were put to the cleaner raising this possibility and giving him the opportunity to say why the action may not have been possible or practical. 44. As far as the defendants are concerned, I think [Mirvac] is liable to the plaintiff for not requiring the cleaning to be done outside public hours. The travelator, perhaps even more than stairs generally, is an inherently dangerous device. [Mirvac] would have been aware that cleaning around the travelator would make the area wet and therefore dangerous to a person whose shoes became wet. The manager could have directed the cleaner to carry out his task either when the travelator was stopped or before opening hours. In this respect the cleaner also bears some responsibility. He had the capacity to turn off the travelator during his cleaning exercise. 45. I also think [Mirvac] carries a liability generally for the actions of the cleaner. I do agree that the obligation in respect of efficient cleaning can be delegated but I do not accept that there had been a proper delegation in the present case, at least sufficient to relieve [Mirvac] of liability. 47The primary Judge found (at [47]) that after difficulties with previous cleaners, Glad Cleaning was engaged in November 2007 on an interim basis pending a proper tender. However, there was no evidence of discussion of risk factors or competence. The terms of engagement were minimal and there was no formal contract in place (at [48]). 48The primary Judge then dealt with the question of causation and obvious risk, as follows: 49. The defendants submitted that the plaintiff had failed to establish that her injuries had been caused by any breach of duty of care on the part of the defendants, as required by Section 5D of the [CL Act]. I disagree. In my view, but for the negligence of the defendants the plaintiff would not have entered an area where water could be collected by her shoes and then stepped onto the moving metal surface of the travelator. In other words, but for the defendants' actions the plaintiff would not have slipped. 50. The defendants submitted that they were not under a duty to warn the plaintiff of the risk which she faced because that risk was obvious as defined in Section 5F. Although the plaintiff saw the cleaner as she approached the travelator, the plaintiff submitted that the actual risk to which she was about to be exposed was not obvious. The plaintiff said that the specific risk must be identified and relied on this passage from the New South Wales Court of Appeal decision in C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136, at [113]: I do not consider that the remaining sub-sections of s 5F render the statutory definition of 'obvious risk' applicable to these circumstances. The spilt polish being left rendering the floor slippery was not a 'patent risk' to the unaware so rendering it an obvious risk; the most that could be said was that it was arguably common knowledge that cleaners on occasion do their job carelessly so that spilt polish might be a possibility: s 5F(2). Of course if it were well-known to the plaintiff that a particular cleaner was excessively careless and regularly left polish on the floor, that would be a case converting the mere possibility of some risk into a patent risk, arising as a matter of common knowledge. But this was never such a case. 51. I agree with the plaintiff's submissions on this point. What would have been obvious to the plaintiff was that the cleaner was using water on the surface ahead of her. Use of water might create a danger of slipping. What would not, however, have been obvious to her was the risk created by first of all stepping on water, then having the soles of her feet become wet and then being susceptible to the lubricating effect of wet shoes on the moving steel surface. I therefore do not think that the obvious risk provisions of the [CL Act] assist the defendants. 52. If I am wrong in this regard I am nevertheless satisfied that the breach of duty of care of the defendants goes beyond a failure to warn such that the absence of the warning did not disturb the causal link between other acts of negligence on the defendants' part and the plaintiff being injured. 49The primary Judge considered (at [53]) that, as between Mirvac and Glad Cleaning, the latter had to bear the majority of the blame. The cleaner did the work in a negligent manner and could have simply stopped the Plaintiff from proceeding "as a means of alleviating the risk of her fall". Accordingly, he concluded that Mirvac should be entitled to a contribution from Glad Cleaning of 80 per cent of the Plaintiff's damages. 50His Honour assessed the Plaintiff's contributory negligence at ten per cent (at [55]) for the following reasons (at [54]): the close inspection of the video ... establishes that [the Plaintiff] did attempt to hold the handrail on the right hand side. Nevertheless I think there is some contributory negligence in that having decided to walk through the wet area she should have taken extreme caution in proceeding down the travelator. I ... observed that when the cleaner descended the travelator he did so with both arms holding on to the handrails and apparently with a good deal of caution.

Glad Retail 51Mr Sexton advanced four arguments: (i) The primary Judge should have found that it would have been obvious to the Plaintiff that stepping on a wet surface and having the soles of her feet become wet would have made her susceptible to the lubricating effect of wet shoes on the moving steel surface of the travelator. What followed from that error was not made entirely clear, but presumably a finding that the risk was obvious would preclude a finding that Glad Cleaning was under a duty to warn the Plaintiff of the risk of slipping on the travelator: CL Act, s 5H(1). (ii) The primary Judge erred in finding that a reasonable person in the position of Glad Cleaning would have taken the precaution of preventing the Plaintiff from stepping on to the travelator, or of placing a no entry sign in her path, until the area being cleaned had dried out. None of the other steps identified by the primary Judge would have been taken by a reasonable person in the position of Glad Cleaning and his Honour should have so found. In particular, it was not possible for Glad Cleaning to clean the rubber section near the travelator before the Centre opened, since Mirvac's "house rules" prevented Glad Cleaning from undertaking cleaning until after the Centre was open to the public. (iii) The evidence did not establish on the balance of probabilities either that moisture adhered to the Plaintiff's shoes or that that moisture caused her to slip on the travelator. (iv) The primary Judge's finding on contributory negligence was flawed because he gave insufficient weight to the fact (evident from the CCTV footage) that the Plaintiff took two or three steps on the travelator without holding on to a handrail (although his Honour found that she was reaching for the handrail when she fell). 52Glad Cleaning's amended notice of appeal did not challenge the primary Judge's apportionment of responsibility between it and Mirvac. However, Glad Cleaning did seek an order that the judgment in favour of Mirvac on its cross-claim against Glad Cleaning be set aside, presumably on the basis that the findings of negligence and causation against Glad Cleaning should be set aside. Its submissions did not contend that, in the event of the findings of negligence and causation being upheld, there should be any variation of the orders relating to the contributions to be made by Glad Cleaning and Mirvac to the damages awarded to the Plaintiff.

The Plaintiff 53The Plaintiff submitted that: (i) there was ample evidence to support the finding that her fall was caused by moisture adhering to the undersides of her shoes; (ii) the primary Judge's findings as to breach should be upheld, in particular the finding that the cleaning could have been undertaken before the Centre was opened for business; (iii) the primary Judge was correct to find that the risk was not obvious; and (iv) the finding as to contributory negligence should not be disturbed.

Mirvac 54Since Mirvac's application for an extension of time in which to appeal was dismissed, Mirvac's role on the appeal was limited to resisting Glad Cleaning's challenge to the findings against it. Mr Maconachie submitted that those findings should be upheld.

The Legislation 55Division 4 of Part 1A of the CL Act (ss 5F-5I) is headed "Assumption of Risk". Sections 5F-5H at the relevant time provided as follows: 5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. ... (Section 5G has been amended to substitute "In proceedings relating to liability for negligence" for "In determining liability for negligence": Statute Law (Miscellaneous Provisions) Act 2012, Sch 2.7). 56The definition of "obvious risk" in Div 4 of Part 1A of the CL Act is significant for three main reasons. First, a defendant does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to that person: s 5H(1). Secondly, a defendant is not liable in negligence for harm suffered by the plaintiff as a result of the "materialisation" of an obvious risk of a dangerous recreational activity engaged in by the plaintiff: s 5L(1). Thirdly, there is a statutory presumption that a plaintiff was aware of the risk of harm if it was an obvious risk: s 5G(1). The presumption can be important if a defendant relies on the defence of voluntary assumption of risk. See on these matters Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Reports 81-874, at [71], [86]-[90], per McClellan CJ at CL. 57A finding that a risk of harm is an obvious risk does not automatically prevent a defendant being held liable for breach of duty. Such a finding eliminates any common law duty to warn but does not, of itself, have any other relevance to whether the defendant was in breach of duty: Angel v Hawkesbury City Council [2008] NSWCA 130; (2008) Aust Torts Reports 81-955, at [83], per Beazley and Tobias JJA (with whom Spigelman CJ, Giles and Campbell JJA agreed). Of course, the obviousness of the risk may be relevant to the question of breach, but that is not because of Div 4 of Part 1A: Angel v Hawkesbury CC, at [84]. 58The present appeal does not involve a defence of a voluntary assumption of risk or an allegation that the Plaintiff was participating in a "dangerous recreational activity" (s 5K). The only consequence of a finding in this case that the risk of harm was obvious is that the Plaintiff cannot rely on the cleaner's failure to warn her of the risk. The issue therefore does not have the importance that Mr Sexton appeared to attribute to it. Nonetheless, I shall address it.

Was the Risk Obvious? 59The definition of "obvious risk" incorporates an objective test but one that is to be applied by reference to the position of the person concerned. In a passage that has been frequently cited, Tobias JA observed in Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418, at [98], that: It is clear from the definition of 'obvious risk' in s 5F that one is required to have regard to the particular circumstances in which the [plaintiff] suffered the relevant harm and determine whether the risk which resulted in his suffering that harm would have been obvious to a reasonable person in his position. In other words ... all of the surrounding circumstances which occurred immediately prior to the [plaintiff's] suffering the relevant harm must also be identified for the purpose of determining whether the risk which materialised was 'obvious'. In the same case (at [100]) Tobias JA repeated the definition of the word "obvious" that he had put forward in Wyong Shire Council v Vairy [2004] NSWCA 247; (2004) Aust Torts Reports 81-754, at [161]: 'Obvious' means that both the condition and the risk are apparent to and would be recognised by a reasonable man, in the position of the [plaintiff], exercising ordinary perception, intelligence and judgment. 60In Council of the City of Greater Taree v Wells [2010] NSWCA 147; 174 LGERA 208, Beazley JA (with whom McColl and Basten JJA agreed) summarised the authorities construing the definition of "obvious risk" as follows: 75. Whether a risk is obvious is determined objectively, having regard to the particular circumstances in which the ... plaintiff ... was in: see Fallas v Mourlas (2006) 65 NSWLR 418, where Ipp, Basten and Tobias JJA determined that "the position of the plaintiff" comprehended the particular circumstances in which the risk materialised and the harm was suffered. 76. The question of obvious risk requires a determination of whether the [defendant's] conduct involved a risk of harm which would have been obvious to a reasonable person in the position of the [plaintiff]: Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Reports 81-874 at [93]. In Great Lakes Shire Council v Dederer [2006] NSWCA 101; (2006) Aust Torts Reports 81-860 Ipp JA (Handley and Tobias JJA agreeing) stated that the position of the plaintiff will include the plaintiff's knowledge and experience of the relevant area and conditions (see Ipp JA at [152]). (The question of obvious risk was not dealt with by the High Court in Roads and Traffic Authority of NSW v Dederer; see also Santow JA in C G Maloney Pty Ltd v Hutton-Potts [2006] NSWCA 136 at [106]-[108]). In Fallas v Mourlas Basten JA, at [153], stated that for the purposes of s 5F, it was necessary to identify the circumstances and extent to which "the aspects of 'the position' of the plaintiff" are to be ascribed to the reasonable person. 61Since the test is objective, it is not the plaintiff's state of mind that is determinative, but what a reasonable person in his or her position would regard as obvious. Even so, as Ipp JA stated in Great Lakes Shire Council v Dederer [2006] NSWCA 101; (2006) Aust Torts Reports 81-860, at [164], the plaintiff's evidence is relevant to the assessment of what a reasonable person would know about the risk. For that reason, Ipp JA took into account the knowledge that Mr Dederer, who had been injured diving from a bridge, had as to the depth of water, the sign prohibiting diving and the existence of a sandbar. See also Carey v Lake Macquarie CC, at [96]-[99], per McClellan CJ at CL. 62Mr Sexton pointed out that the Plaintiff had been cross-examined as to her knowledge that the cleaner was mopping the very area over which she walked. She agreed that she had seen the cleaner with a mop in his hand. No doubt this evidence justified the finding made by the primary Judge (at [51]) that it would have been obvious to the Plaintiff that the cleaner was using water on the surface ahead of her. But as his Honour observed, the risk that was said to be obvious was a different one, namely the lubricating effect of wet shoes coming into contact with a moving (but dry) steel surface. The Plaintiff was not asked whether she appreciated that risk or had any previous experience of walking with wet shoes on this or any other travelator. 63Mr Sexton accepted that the onus of proving that the risk was obvious rested on Glad Cleaning. He submitted, correctly, that the fact that the Plaintiff was not asked about her subjective appreciation of the risk was not necessarily fatal to a finding that the risk was "obvious", although in my opinion the absence of evidence on that point is a factor to be taken into account. When asked to identify the basis on which the primary Judge's finding (that the risk was not obvious) should be overturned, Mr Sexton replied that it was "a matter of common sense". 64The Plaintiff's circumstances at the time the accident occurred have to be taken into account. She appreciated that the rubber section was wet and that she had to proceed carefully because the floor was wet. She did in fact proceed carefully. She then had no choice but to use the travelator in order to reach the car park. A reasonable person in her position, in order to regard it as obvious that there was a particular risk associated with the lubricating effect of moisture on the underside of shoes coming in contact with the moving travelator pallets, would need to appreciate at least that:

an accumulation of moisture on shoes is capable of creating what the experts described as a "tribological" effect;
the surface of the pallets was what the experts described as hydrophilic rather than hydrophobic;
the plaintiff had accumulated sufficient moisture on the undersides of her shoes to create the tribological effect when she came in contact with the moving pallet; and
the risk was exacerbated because of the travelator's degree of inclination. 65The Plaintiff carefully negotiated the section being mopped by the cleaner. In doing so, it is likely that she attempted to minimise the extent to which the undersides of her shoes became wet. There is no evidence to suggest that the Plaintiff's footwear was especially likely to accumulate moisture or that a reasonable person in her position would have expected that the extent of the accumulation of moisture was unusual. 66In these circumstances, I do not think that "common sense" provides a sound basis for overturning the primary Judge's finding that the risk was not "obvious" within the meaning of s 5F(1) of the CL Act.

Breach of Duty 67The primary Judge found (at [37]) that Glad Cleaning owed a duty to persons lawfully using the area in which cleaning was taking place to take reasonable care to avoid a foreseeable risk of injury to them. I did not understand Glad Cleaning to dispute that it owed such a duty to the Plaintiff. Its submissions concentrated on whether the primary Judge correctly found that it had breached that duty.

The Legislation 68Sections 5B and 5C of the CL Act provide as follows: 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. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and ...

Should the Finding of Breach of Duty be Upheld? 69Mr Dahal gave evidence that it was necessary to clean the rubber tiles every day, but that the fixed metal strip and the travelator were cleaned much less frequently. In finding that Glad Cleaning had not taken precautions against the risk of harm that a reasonable person in its position would have taken, the primary Judge identified a number of measures. His Honour did not analyse each of these precautions individually to determine whether it satisfied the criteria laid down in s 5B(2) of the CL Act. For example, his Honour did not consider the burden of preventing not only the Plaintiff but any other member of the public from gaining access to the travelator (the only way of getting to and from the car park) for the five to ten minutes apparently required for the wet area to dry (s 5B(2)(c)). The practicalities of implementing such a regime in a shopping centre open for business, albeit early in the morning, were not explored in the evidence or by his Honour. 70The primary Judge found that one precaution Glad Cleaning could have taken was to conduct the daily cleaning operation in the area in front of the travelator before the Centre opened. If this had been done, any danger to members of the public from the regular cleaning operation would be avoided and there would have been no need to hold up people attempting to get to or from the car park while the wet areas dried out. Some employees arrived at Woolworths before the Centre opened at 7 am, but as the Plaintiff explained, they did not use the travelator. 71Mr Sexton recognised that this precaution fell into a different category to the others identified by the primary Judge, since it would have avoided any disruption to members of the public and, in the absence of any countervailing consideration, seemed to pose no practical difficulties. He submitted, however, that a reasonable person in Glad Cleaning's position would not have carried out the regular cleaning before the Centre opened because Mirvac had given a direction for security reasons that the cleaning was to be done only after the Centre had opened. The primary Judge made no such finding, but Mr Sexton contended that the evidence showed that Glad Cleaning did not have the option of cleaning before the Centre opened. 72The evidence on which Mr Sexton relied was given by Mr Shambanna, Glad Cleaning's chief operating officer. In his examination-in-chief, Mr Shambanna gave this evidence: Q. Mr Shambanna, in these proceedings there has been evidence of a cleaner starting work at a certain time and then performing cleaning operations. Do you have any familiarity with the times at which cleaning could be conducted in 2008 or not? A. Sure, yes. Q. What do you know about that? A. We had some issues with the security accessing the site in the morning especially. So when we at the tender discussion, Carmen, the centre manager, took us around and showed the house rules. Like, we are not supposed to open the door of the centre until it's open for public because of security issues. So the cleaner used to start at five or 5.30 in the morning, clean the car park areas and then open to public the centre roughly around 7 o'clock. HIS HONOUR Q. So this incident happened in July 2008. In July 2008 was the cleaner starting at 5.30? A. I've got to go back and refer my document, but around five or 5.30 in the morning, but the first duty is to clean the car park areas and the external areas before we walk into the shopping centre. PRIESTLEY Q. So, Mr Shambanna, could the cleaners clean before 7 o'clock up in the shopping centre level? A. They could. Because of the security issues onsite we are not supposed to go inside the centre before it's open to the public. Q. So does that mean they couldn't? A. They couldn't do the job, no. That was the house rule setup onsite. Q. Did you say house rules? A. House rules set onsite, yeah. Q. The house rules of who? A. By Mirvac, being the managing agent of the shopping centre. 73 The topic was also addressed in cross-examination: Q. You say that at one point in time the cleaner started [his work] in the car park? A. That's correct, yes. Q. Was that an instruction that you had given, or someone at Glad had given to the cleaner? A. That's correct, yes. Q. So if the cleaner said the first part of the premises at Chester Hill Shopping Centre that I, the cleaner, started to clean, was the floor area on the Woolworths level in the area of the travelators, would that be right, as of July 2008, or would that be in breach of what he was supposed to do? A. There were three changes in the way we do cleaning there. When we initially started I believe the cleaner was starting around five or 5.30 in the morning and then there was change in circumstances of the scope in November 2007, because that centre was going through construction phase. There were a lot of changes in the way we do cleaning onsite and that was completely directed by Carmen onsite, who was the centre manager, depending on what time the builders finish onsite, whether we can open the door, whether they have a door to open the centre. There were a lot of changes during that phase. So I cannot really recollect, like, exactly who gave the instruction to the cleaner. If he has done that then obviously that was a house rule put by the centre management. 74Mr Dahal, who was solely responsible for cleaning the area of the Centre in which the travelator was located on weekday mornings, gave evidence that he was not sure whether he began work on the day in question at 5.30 or at 7 am. He did not suggest that there was anything to prevent him from starting at 5.30 am. The only contractual document in evidence concerning the cleaning arrangements was a letter dated 14 December 2007, which stated that the new cleaning times for Monday to Friday were 5 am to 7 pm. The same letter indicated that security was to be on site on weekdays between 5 am and 10.30 pm. Neither the letter nor any other document in evidence referred to any direction from Mirvac as to when cleaning should take place. Ms Carmen McAlary, the Mirvac retail manager referred to by Mr Shambanna, did not give evidence and no-one else from Mirvac gave evidence of any "house rules". 75Mr Dahal said that it was his job to turn on the travelator in the morning. He also said that his first priority each day was to clean the bubble tiles near the travelator, unless there was some particular reason to clean elsewhere. He was not asked in chief whether Mirvac had specified, whether by house rules or otherwise, that he was not permitted to clean the area near the travelator until after the Centre had opened. 76In his cross-examination, Mr Dahal seemed to suggest that the only reason why he did not clean the travelator area first and then turn on the travelator was because on some occasions he started work at 7 am: Q. When you used to switch [the travelator] on in the morning when you came, did you then clean it straight away? A. That's what I said you know, it's my first job before the people come but you know, in circumstances like sometimes maybe the bathroom is even more dirty, you know somebody might have vomited or something like that or there is some you know bottles next to the door so and you know, if I see something more important, extremely important than I might have attended that one but otherwise just grab the bucket. Q. But if it was your first job all right so is the first thing you would do turn it on? A. Turn it on yeah. Q. And then do the cleaning? A. Because 7 o'clock - Q. Is there any reason why you couldn't do the cleaning first and then turn it on? A. If I start at 7 o'clock it will be late because I need to open the car park door. People use, you know come inside and have to obviously run the travelator because they will come through the car park and then start cleaning it. Mr Dahal said nothing to suggest that in July 2008 he was not permitted to start work earlier than 7 am. Indeed, the letter of 14 December 2007 indicates that from Mirvac's point of view an earlier starting time was desirable, if not actually required. 77On this evidence, I do not think a finding should be made that Mirvac had imposed "house rules" on Glad Cleaning preventing the regular cleaning of the rubber section in front of the travelator before the Centre opened at 7 am. The first suggestion that house rules were in place came from Mr Shambanna, who gave evidence after Mr Dahal. Mr Shambanna's evidence on the point was vague both as to the source of any direction given by Mirvac and the period during which any such direction may have been in force. His evidence is not supported by any documentation and, if anything, is inconsistent with Mirvac's letter of 14 December 2007. It is also difficult to reconcile his evidence, insofar as it suggested that Mr Dahal could not clean the rubber tiles until after the Centre opened, with the evidence of Mr Dahal set out above (at [73]-[75]). 78The Plaintiff submitted that an affirmative finding should be made that Mr Dahal started work on 25 July 2008 at 5.30 am or at least well before 7 am. I do not think that the time he commenced work is material to the outcome. However, since he could not remember when he started and the contractual arrangements with Mirvac appear to have contemplated an early start by the cleaner, it is likely that he commenced work on 25 July 2008 well before 7 am. If necessary, I would make that finding. 79Once the position is reached that Mirvac did not direct Glad Cleaning to delay regular cleaning until after the Centre opened, I do not think that there is any difficulty in upholding the primary Judge's finding that Glad Cleaning was in breach of its duty to the Plaintiff by not conducting the regular cleaning of the rubber tiles before the Centre opened. In the absence of any direction from Mirvac, there was no impediment to cleaning the area before members of the public and employees of tenants arrived at the Centre. 80The risk of injury due to persons slipping on the moving travelator because of moisture attaching to their shoes was foreseeable, notwithstanding that the danger could not be said to be "obvious" to someone in the Plaintiff's position. The risk was not insignificant, since a person falling on the travelator might well sustain serious injuries. The fact that there was a sign warning users to hold the handrails did not obviate the risk or render it insignificant. Despite the warning not everyone will hold the handrails (as was evident from the CCTV footage when someone used the travelator immediately after the accident without using the handrails). 81Even people taking care for their own safety may not grasp hold of handrails on a travelator as soon as they set foot on the moving pallets. In a shopping centre people will often be carrying packages in each hand that limit their ability to hold on to the handrail. Some may be unable to take the optimum measures for their own safety because of the need to look after children. Others, like the Plaintiff, may appreciate that they should grasp the handrail but defer doing so for a moment or two as they place their feet on the pallets. As this case demonstrates, a delay in grasping the handrail may be a contributing factor to a fall, but it is hardly an unexpected occurrence. 82In determining the precautions that a reasonable person in Glad Cleaning's position would take, it is not to be assumed that everyone will meticulously comply with the more stringent measures that would ensure their own safety. If it were otherwise, there would be no room for the doctrine of contributory negligence. 83Section 5B(2) identifies the matters (among other relevant things) that a court is to consider in determining whether a reasonable person would have taken the relevant precautions. On the evidence, there was no reason why Glad Cleaning could not have carried out the daily cleaning of the rubber tiles before the Centre opened. That measure would have eliminated the risk to which all users of the travelator were exposed when they were forced to walk across a wet area of rubber tiles in order to gain access to the only path to the car park. The burden, if any, on Glad Cleaning in taking that simple precaution would have been only small, but it would have overcome a significant risk of injury to people visiting or working at the centre. Moreover, taking this precaution was consistent with Glad Cleaning's contractual obligations to Mirvac. 84Since I have upheld the primary Judge's finding that Glad Cleaning breached its duty of care, there is no need to consider the Plaintiff's notice of contention.

The Cause of the Fall 85Mr Sexton's submission that there was no evidence that the Plaintiff's fall was caused by moisture on her shoes sits rather uneasily with his submission that the risk of slipping on the travelator was obvious. In any event, there was ample evidence to support the primary Judge's finding. 86Mr Dahal's incident report, prepared after the accident, stated that the Plaintiff had walked over the wet area to get to the travelator. He agreed with the suggestion put to him that she had to walk over a wet area to reach the entrance to the travelator. He also accepted that the Plaintiff had walked carefully over the area he had been mopping, which was "definitely" wet. The Plaintiff herself remarked as she approached the travelator that the area was wet. 87Ms Willis, the bakery manager at the Woolworths store, was called to the scene of the fall about ten minutes after it occurred. She said that the entrance to the travelator was still wet. Ms Willis also said that she noticed some slipperiness on the surface of the travelator when she stepped on, which she attributed to "your shoes [being] wet before you get on". 88The primary Judge accepted (at [36]) the evidence of Mr Beckett, a consulting engineer, that when a pallet on a travelator becomes wet it is slippery, although his Honour said that this was little more than the application of common sense. Mr Beckett also gave evidence that the slipperiness of the travelator was exacerbated by its degree of inclination. The expert evidence addressed at length the lubricating effect of wet shoes coming in contact with a moving metal pallet. 89The primary Judge was entitled to infer from this evidence and from the CCTV footage of the incident that on the balance of probabilities the Plaintiff's shoes were wet because she had walked on the wet rubber surface and that, but for the accumulated moisture on her shoes, she would not have fallen. 90I did not understand Mr Sexton to submit that if Glad Cleaning's breach of duty consisted of its failure to carry out the daily cleaning before the Centre opened, the Plaintiff did not satisfy the requirements of ss 5D and 5E of the CL Act. In any event, it is clear that if Glad Cleaning had carried out its daily cleaning responsibilities before the Centre opened, the harm to the Plaintiff would not have occurred (s 5D(1))(a)). Nor is there any reason why the scope of Glad Cleaning's liability should not extend to the harm caused by its negligence (s 5D(1)(b)).

Contributory Negligence 91There are constraints on appellate court intervention in a trial court's decision on contributory negligence: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529, at 532; Nominal Defendant v Green [2013] NSWCA 219; 64 MVR 354, at [48], per Basten JA (with whom McColl JA and Sackville AJA agreed). 92Mr Sexton submitted that the error on the part of the primary Judge was to find, against the evidence, that the Plaintiff reached for the handrail but had not actually grasped it when she fell. However, Glad Cleaning's written submissions included the statement that the CCTV footage can be interpreted as showing the Plaintiff's right arm extended away from her body at the moment of the fall. His Honour was entitled to rely on the observation of the footage to conclude that the Plaintiff was attempting to grasp the handrail, albeit after slipping on the travelator. 93No error has been shown that would justify this Court setting aside the primary Judge's apportionment of responsibility to the Plaintiff of ten per cent.

Orders 94The following orders should be made: (1)Dismiss the motion filed by the second respondent ("Mirvac") on 28 August 2013 seeking an extension of time for the filing of a notice of appeal. (2)Order Mirvac to pay the costs of the appellant ("Glad Cleaning") and the first respondent ("the Plaintiff") of the motion. (3)Dismiss Glad Cleaning's appeal. (4)Order Glad Cleaning to pay the costs of the Plaintiff and of Mirvac of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 January 2014

Gerard Malouf and Partners (First Respondent) Thompson Cooper Lawyers (Second Respondent) File Number(s): 2013/127719 Decision under appeal Jurisdiction: 9101 Citation: Alvarenga v Mirvac Real Estate Pty Ltd & Anor [2013] NSWDC 26 Date of Decision: 2013-03-28 00:00:00 Before: Elkaim SC DCJ File Number(s): 2010/353197

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