Hart v Veloce Expresso Pty Ltd

The plaintiff's case

1. Before turning to the facts it is necessary to set out the plaintiff's case.
2. The essential claims made in the amended statement of claim are: (i) the first defendant was vested with the "care, control and management of the café and the pedestrian thoroughfare between the café and the table and chairs": [4]; (ii) the plaintiff was a "lawful entrant upon the premises of the airport and the café": [5]; (iii) the plaintiff was "walking adjacent to the café when she slipped on water which was on the floor and fell": [6]; (iv) before the accident the first defendant "knew or ought to have known of the dangerous trap caused by the water" (a large yellow warning cone had been placed adjacent to the water some time before the accident): [7]; (v) as a result of the accident the plaintiff suffered injury, loss and damage: [9]; (vi) the first defendant was negligent in failing to: 1. "promptly remove the water from the floor"; 2. "provide non-slip matting in the immediate vicinity of the café"; 3. "warn the plaintiff of the water on the floor"; 4. "keep any or any proper lookout"; 5. "arrange an employee or other person to prevent pedestrians including the plaintiff from walking over the trap"; 6. "take any or any adequate precaution for the safety of the plaintiff"; and 7. "exposed the plaintiff to a risk of injury that could have been avoided by the exercise of reasonable care on its part": [10A].
3. In her final submissions, the plaintiff argued a different case. First, she argued that the negligence relied on was the creation of a hazard and the failure to protect potential victims from the hazard: plaintiff's written submissions (PS) [2]. The hazard was said to have been created by wet-mopping the floor of the thoroughfare between the café and the seating area. That is a significant departure from the pleaded case. If leave were sought to raise it, which it was not, I would refuse leave because there was no explanation for the lateness of the argument and the first defendant could easily have adduced evidence to meet it had it been raised early in the proceedings. In any event, it makes the critical issue on liability dependent on the very narrow factual assertion that the first defendant caused the floor area to be mopped. For reasons I give later, that assertion is rejected and, as a consequence, the entire claim based on it must fail.
4. Secondly, Ms Hart argued that, by virtue of the terms of its sub-lease of the café premises, the first defendant was required to keep the premises and any "special floor coverings" surrounding or leading into the premises clean, and owed a duty under the Occupational Health & Safety Act 2000 (NSW) (repealed) and its successor, the Work Health & Safety Act 2011 (NSW) (WH&S Act) in respect of "activities" undertaken by it: PS [18]-[25]. That meant that the first defendant had a contractual and legislative obligation that included "maintaining the area between its coffee shop and the service area in a safe condition": PS [27]. Even though this argument goes beyond the plaintiff's pleaded case, it can readily be dealt with on the evidence before the Court.
5. The extent, if any, of the first defendant's responsibility for the area of the terminal between the café and the seating area is critical to these proceedings. For that reason, it is convenient to deal with that issue first.

The first defendant's responsibility in respect of the thoroughfare

1. The occupation of the café by the first defendant was governed by the terms of a sub-lease between it and Sydney Airport Corporation Limited (SACL). The sub-lease granted the first defendant the right of occupation of the premises known as "Site 3T-071, T2 Domestic Terminal, Sydney (Kingsford-Smith) Airport, Mascot…", the boundaries of which are shown on a plan attached to the sub-lease. Although it is difficult to understand that plan, it was not in dispute that the premises included extended only to the outer walls of the kiosk situated on the departure level of the terminal.
2. The obligations of the first defendant included those found in cl 10 of the sub-lease which relevantly included the following: "Cleaning the Premises 10.3 The Tenant must: (a) at its own cost, keep the Premises and Designated Premises (including, if not already cleaned by the Landlord and charged to the Tenant, any portals, light fittings, ceilings, external and internal shopfront, bulkhead, airconditioning vents, floors and waste bins) and everything in them, and also any special floor coverings surrounding or leading into the Premises and Designated Premises, clean and free of vermin. The Tenant must also comply with the Landlord's directions in that regard and in regard to waste removal and disposal; and (b) commission a qualified person to regularly clean, maintain and service all cooking facilities (including exhaust hood and filters) located on the Premises, to Australian industry standards and in accordance with any relevant laws. The Tenant must, on demand, provide the Landlord with information that the Landlord reasonably requires to prove that such cleaning, maintenance and servicing has occurred." (Emphasis in original, emphasis added)
3. Designated premises were any "premises in addition to the Premises (if any) as may be notified in writing from the Landlord to the Tenant from time to time": see cl 1.1. There was no evidence of any such notification.
4. There was also no evidence of any "special floor coverings" referred to in cl 10.3(a).
5. Clause 10.6 of the sub-lease required the first defendant to comply with its "obligations under the Occupational Health and Safety Act and OH&S Regulation in relation to its use of the Premises and any other facilities or services at the Airport". That legislation was repealed and replaced by the WH&S Act. By operation of cl 1.2(d) of the sub-lease, cl 10 required the first defendant to comply with the WH&S Act.
6. The plaintiff relies upon the primary duty of care found in s 19 of the WH&S Act which relevantly provides that "a person conducting a business or undertaking must ensure, so far as is reasonably practicable", that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. She also relies upon the further obligation under s 20 of that Act imposed upon a person with management or control of a workplace to ensure, so far as is reasonably practicable, "that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person".
7. Nothing in these provisions required the first defendant to ensure the safety of people using the thoroughfare. As will be seen, the conduct of the business or undertaking of the café did not entail the general use of the thoroughfare.
8. The plaintiff's submissions also referred to the Work Health & Safety Regulations and in particular regs 34, 35 and 78. Although the submission does not make it clear, I take the reference to be to the Work Health & Safety Regulation 2011 (NSW) (WH&S Regulation) as the current Regulations came into force on 1 July 2017: reg 2.
9. Regulation 34 of the WH&S Regulation provided that a "duty holder, in managing risks to health and safety, must identify reasonably foreseeable hazards that could give rise to risks to health and safety". Regulations 34 and 35 are found in pt 3.1 of the WH&S Regulation which applied to a person conducting a business or undertaking "who has a duty under this Regulation to manage risks to health and safety": s 32. The plaintiff was not able to point to any provision in the WH&S Regulation pursuant to which a duty was imposed upon the first defendant to manage risks to health and safety. For that reason, the regulations relied upon did not apply to the first defendant and cannot assist the plaintiff's case. Similarly, reg 78, which flows from any obligation under pt 3.1 does not assist.
10. It is important also to examine the obligations of the sub-lessor, SACL, under the sub-lease.
11. Those obligations included to keep the common areas clean: cl 11.2(c). The term "Common Areas" was defined in cl 1.1 to mean "those parts of the Terminal which the Landlord intends for common use". In this case it is clear not only from the footage of the accident but also from the plan annexed to the sub-lease that the thoroughfare was intended to be for common use. That area was a high traffic area used by passengers arriving at the terminal and any people coming with them, and was not in any way limited to use by people patronising or intending to patronise the café. In light of that, the thoroughfare was the responsibility of SACL.
12. Annexure 1 to the sub-lease contained a number of rules which prohibited the first defendant from engaging in certain activities. These rules included the prohibition of use of escalators or passenger lifts to carry goods or equipment; the moving of heavy or bulky objects through the terminal without the landlord's approval; from permitting any object to protrude from the premises, or to be attached to the premises, so it is to be visible from outside the premises except with the landlord's written approval; or leave goods or articles belonging to, or under the control of, the tenant on any part of the common areas without the landlord's consent. The extent and nature of these rules and the prohibitions contained in them indicate, and it was not contested, that SACL was well and truly in control of the whole of the terminal and in particular, importantly to this case, the common area which included the thoroughfare.
13. SACL engaged the second defendant, Assetlink Services Pty Limited, to provide cleaning services pursuant to a contract which appears to have been entered into in or around 2013. The specification of works required to be undertaken by the second defendant pursuant to the cleaning contract noted that the cleanliness of the airport was paramount to ensure the health and safety of airport users: cl A1(a)(iii). The second defendant was engaged for the purpose of ensuring that that and the other specified purposes were fulfilled. The areas the subject of the cleaning contract included the T2 terminal: cl A2.1(b).
14. One of the specific tasks required of the second defendant was to provide for a litter and spill patrol in respect of hard floors including terrazzo, granite, marble, ceramic and the like which consisted of regular checks during operational hours: see contract Part E, section 3 at page 4 of attachment 1 [2] . That obligation applied to the thoroughfare which had a hard floor.
15. The plaintiff argued [3] that the first defendant had "both a contractual and legislative obligation to comply with the WHS Act and that obligation included maintaining the area between its coffee shop and service area in a safe condition". I reject that submission. The argument relies upon the implicit assertion that the "business or undertaking" (see s 19 of the WH&S Act) included or required work in the thoroughfare. I will deal shortly with the evidence relied upon by the plaintiff to establish that assertion. However, there is nothing in the contract which supports it. Rather, the provisions in the sub-lease make it plain that the entitlement of the first defendant to conduct its business was restricted to the premises which did not include the thoroughfare and, as a corollary, its obligations to clean or otherwise did not extend to the thoroughfare. Rather, that obligation fell on the sub-lessor, SACL, and by means of its contract with the second defendant, on the second defendant.
16. The plaintiff also argued that the evidence established that the first defendant had control of the thoroughfare and that the conduct of the business of the café took place there. She relied essentially on two matters: first, the placement of the trolley at the entrance to the café, and secondly, the part of the CCTV footage which showed an employee of the first defendant moving the safety cone from the dry spot to the wet area where the plaintiff fell, moving the milk crate trolley from the area in front of the shop and using a paper towel to remove moisture from the floor in the area of the milk crates.
17. I accept that the first defendant used part of the thoroughfare for the delivery of goods to the café premises. Its employees also used it to enter and leave the café premises but there was no evidence to establish that that ingress and egress was, itself, part of the business or undertaking. To the extent that the thoroughfare was used for the delivery of goods, such as the milk on the luggage trolley, it was as part of the business or undertaking of the café. For that reason, under the sub-lease and the WH&S Act, the first defendant did have an obligation to ensure, as far as reasonably practicable, that the use of the trolley or other means of delivering goods to the café, did not create any risk to the safety of any person. That is a different matter however to the obligation to take reasonable care to prevent a person from slipping on the thoroughfare and suffering injury by landing on the hard surface. It is also entirely different from the pleaded extent of care and management of the thoroughfare.
18. Based on the CCTV evidence, the plaintiff submitted that the "employees of the defendant were active in the wet area and exercising control over activities in that area and were subject to the requirements of the WHS Act" [4] . Except to the extent that I have already discussed the delivery of goods to the café premises, I reject that submission. The activities relied on were all after the plaintiff had fallen. Although the trolley was in the thoroughfare before and at the time of the accident, it was at the entrance of the café rather than in the middle of the thoroughfare where Ms Hart fell. The fact that the employee moved it and the cone and wiped the floor does not suggest that she, or the first defendant, were in any way exercising control over the thoroughfare any more than the customers who helped Ms Hart to her feet were exercising control over it.
19. The plaintiff has failed to establish one of the central planks of her pleaded case, namely that "the first defendant was vested with the care, control and management of the café and the pedestrian thoroughfare between the café and the table and chairs": see [4] of the statement of claim.
20. In order to address the new way in which the plaintiff argued her case at the end of the hearing, and the questions of the existence and extent of a duty of care generally, it is necessary to examine the evidence about the accident and its immediate cause or causes.

The accident

1. The accident was captured on CCTV.
2. The CCTV footage commences at approximately 7:05am on 23 April 2016. It is taken from a camera inside the terminal at the departure level looking past the café, which is on the right, directly towards the entrance doors and beyond that to the driveway where taxis and other vehicles are arriving with passengers.
3. There is a large yellow cone in the middle of the screen placed slightly to the left of the centre of the passageway between the kiosk of the café and the seating area which is on the left. The floor is shown to be a smooth hard tiled surface and there is a sheen on part of that surface suggesting that that part of the surface was wet. Given the absence of any colour in the wet area, I infer that there was water on the surface. The sheen is on the right hand side of the cone in the image and extends from an area approximately one metre closer to the camera from the cone, arcing around the cone and becoming narrower towards the door and ceases at about one or two metres before the entranceway.
4. Although the footage did not reveal the source of the water, I am satisfied that it did not come from the café or any activity associated with it. The water can be seen extending from an area near the entrance to the terminal to the passage between the café and the seating area. That suggests that the water came from the entrance itself or from just inside it.
5. There are two customers standing at the service area of the kiosk at the café and beyond the wet area of the floor. Behind them and towards the entranceway is a woman who, it appears from the balance of the footage, is an employee of the café standing behind a baggage trolley near to the entrance of the café. There is a crate containing what appears to be milk balanced on the baggage trolley. There is a gap of approximately 1.5 metres between the trolley and the large yellow cone and an area of about one metre between the yellow cone to the left hand side and a garbage bin which is situated near the seating area. That area appears to be dry.
6. The footage then shows the employee walking around the trolley and appearing to look down at the ground as she makes her way into the café.
7. Next, at 7:05:44, a woman and young girl come through the entrance with wheelie bags and walk towards the passageway. The girl walks in on the right hand side of the yellow cone directly over the wet area. The mother walks to the other side of the cone and appears to look directly at the cone. As she passes the cone she has to adjust her suitcase so that it does not run into the cone. They walk past the cone and the wet area without incident.
8. At 7:06:03 one of the customers standing at the café kiosk receives what appears to be a take away coffee with a lid on it, turns to his left and walks back out towards the entrance. He does so walking over the wet area and to the right of the cone without incident. As the customer goes through the entrance two more people walk through the entrance coming into the terminal [5] . They both walk comfortably between the trolley and the yellow cone not appearing to pay any particular attention to the floor or to the cone. They both walk through without incident.
9. Very shortly afterwards [6] the plaintiff appears in the entranceway carrying in her right hand a small piece of hand luggage [7] and wheeling behind her a suitcase together with an additional piece of luggage on top of the suitcase. As the plaintiff walks through the entranceway [8] she appears to be looking directly towards the camera which is also in the exact direction as the yellow cone. Two frames forward [9] the plaintiff is seen moving towards the gap on the right hand side of the cone with her head slightly down as though she is looking at the floor directly between the cone and the trolley. In the next frame [10] , the plaintiff is seen one step forward with her head looking slightly to her right, that is, slightly to the left of centre of the image. In the next frame [11] the plaintiff is shown to be less than half a metre away from the cone heading still towards the gap between it and the trolley but with her head turned now towards the right of the frame and down. From where she is standing, given the size of the cone and its proximity to her, the angle of her head and the lack of any obstruction, it is clear beyond any doubt that the cone, the wet floor and the trolley were all within her field of vision at this point.
10. Ms Hart's evidence was that she did not see the cone at all. Although Ms Hart generally appeared to be an honest witness, I do not accept her evidence in this respect. The cone was more than half her height, was bright yellow and stood almost directly in her path. Even though I accept that she looked at the trolley, she could not reasonably have failed to see the cone and I find that she did see it but simply paid no attention to it. If she had, she would have either walked more carefully over the wet area or walked to the other side of the cone, just as the woman with her child had done moments earlier. If either of those had occurred, Ms Hart would most likely not have fallen and injured herself.
11. In the next frame of the CCTV [12] the plaintiff is shown to be directly between the trolley and the cone. Her head is now turned to the far left of the shot, that is, to her far right. Her right foot is forward and it appears that she is just about to place, or has just placed, pressure on that foot in moving forward. The next frame [13] shows the plaintiff on the floor on her right side with her left arm across her and holding herself up. Her right leg is bent slightly backwards and behind her and her left leg appears to be straight and out. It appears, consistently with Ms Hart's evidence, that she slipped over on her right leg and has fallen rather heavily on her right side. The point at which she fell was in part of the sheen or wet area on the floor.
12. The balance of the footage shows the person identified as an airport security officer coming to the plaintiff, the plaintiff being assisted to be sat on a chair and subsequently a cleaner [14] who came and appeared to be dry mopping the floor.

The expert evidence

1. Dr John Cook, an architect, made two written reports [15] . In summary, his opinion was that the second defendant had inadequately patrolled the subject area which, given that it was similar to a food court, should have been every five minutes or less. In his oral evidence Dr Cook addressed the water on the floor and the slipperiness of the floor. In respect of the first he said [16] : "There's a sheen on the floor which is consistent with a wet area. It's also consistent with a wet area that has been mopped. I can't say much more than that. I've seen ‑ I've looked at a lot of floors that mopped in that manner, and that's the appearance that they have."
2. He also said [17] that the floor was a terrazzo floor which was highly slippery when wet. That evidence was not contested by the first defendant.
3. Mr John Laws, a cleaning consultant, had prepared a report [18] dated 9 October 2018 for the second defendant. This was relied upon by the plaintiff at the hearing. In that report he expressed the view that the floor had been wet mopped by somebody prior to the incident. He was cross-examined about this opinion. He said that by "wet mopping" he meant the process of having a mop and bucket and squeezing the moisture out of the mop so that more water could be picked up from the spillage [19] . He accepted that he had no scientific expertise to tell whether or not something had been wet mopped but said that he had 40 years of experience [20] .
4. Mr Laws was questioned about a photograph of the area [21] : "Q.: In this particular picture here, there's clearly enough water on the ground, isn't there, to be more than a film [22] ? That's a puddle? How could that have been wet mopped? A.: Well, it was done by somebody who didn't have experience at mopping up a spill. Q.: You know that, do you? A.: No, I don't know that. I can't ‑ I can't say anything. If I've got a couple more minutes of the vision before, I could have told you all sorts of different things. Q.: So, your speculation is that this spill was wet mopped by someone who didn't know what he was doing or she? A.: Yes. Q.: But you have nothing other than your supposition to say so? A.: Yes. Q.: Now, if someone mops an area of floor, presumably, the area of floor would take on the shape ‑ the area of moisture on the floor would take on the shape of where it had been mopped, correct, because once one stops mopping, assuming one stops mopping at the edge of a wet area, there would be marks left by a mop, wouldn't there? A.: Yes. Q.: Now, that particular stream of water ‑ and I'm referring in this case to the thin stream of water leading towards the doorway ‑ do you agree that that is a stream of water ‑ what appears to be a stream of water? A.: It appears to be. Q: Now, if that had been mopped, that stream would be wider, wouldn't it? A.: No, not necessarily. The stream of water may have been very narrow and the mop swung once or twice each way would have spread it. Q.: But, in reality, sir, I mean, that stream of water is clearly more than just a fill [23] ? A.: Well, if you look at the CCTV, it's all dried within five minutes, air dried. Q.: You're not an expert on evaporation or humidity, I take it either, are you? A.: No."

1. The cross-examination returned to this topic later [24] : "Q.: But your assumption in your report is that someone did attend to it with a wet mop? A.: Yes. Q: But that's just your speculation? A.: That's my speculation."

1. None of this evidence establishes, beyond mere speculation, that the area of sheen shown in the CCTV in the relevant area had been wet mopped prior to the time shown in the CCTV footage. Further, I am unable to tell one way or the other from my own viewing of the CCTV footage whether the area in question had been wet mopped or not. On the state of the evidence I am not satisfied on the balance of probabilities that the area in question was wet mopped prior to the time shown in the CCTV footage. In light of that conclusion, it is unnecessary for me to address further the question of whether the first defendant had created the hazard in question. However, as it was argued before me, I will give my views as to the question of whether it was the first defendant that undertook the wet mopping. In order to do so, it is necessary to consider the evidence of the cleaner.
2. Mr Nazim Abrahim was a cleaner working for Assetlink Services Pty Ltd, the second defendant. He said [25] that the way he cleans the floor depends upon the size of the spillage. If it is a big spillage he would get the big mop and a bucket and if it is a small spillage he would get the flat mop. In any event, they (meaning he or the other cleaners employed by the second defendant) would get the wet floor sign which is folded unlike the large cone that was used in this case.
3. Mr Abrahim's evidence supports the inference that the practice of Assetlink Services in respect of a big spill was to wet mop a large spillage. I will return to the potential consequences of that inference.
4. Mr Abrahim said that in order to dry a wet floor he usually put his trolley across as a barrier and used the mop and bucket to cover a longer area to prevent people crossing or walking in front of it [26] . He then described using the mop and bucket as a little hedge and said that he then waited there in the area until it was dry enough so that no-one walks through it [27] .
5. That evidence was not consistent with the way in which Mr Abrahim was shown to have mopped the floor on the CCTV footage.
6. Mr Abrahim said [28] that the responsibility for cleaning the thoroughfare was that of the café staff. However, he explained under cross-examination [29] that even though it is not his responsibility he did "usually clean it". He said that he got his understanding of his responsibilities of cleaning from his supervisor [30] .
7. Mr Abrahim was not sure how many staff of Assetlink Services were working on the day in question but said that there were usually always two unless it was very busy, in which case there were three [31] . Under cross-examination he said that the areas were inspected on patrol between 20 and 30 minutes [32] but admitted that he did not know where his fellow workers were because they could have been anywhere on the floor [33] .
8. Mr Abrahim said that there were a number of yellow cones such as those shown in the CCTV footage scattered around the floor on the departure level and that they were used by the cleaners [34] . Mr Abrahim was cross-examined about the mopping of the floor: "Q.: And you don't know whether anyone mopped the floor before you did? A. WITNESS: No. Q.: And you didn't think it was your job to mop the floor anyway, did you? A. INTERPRETER: It's my responsibility, but if there is a spillage, I automatic clean it. Q.: I'll just be very clear: where the water spilled that day, that spill, you don't think it was your job to clean that area; is that correct? A. INTERPRETER: Yes. Q.: So if you had patrolled that area earlier in the morning, you wouldn't have cleaned it up, would you? A. INTERPRETER: If I saw water on the floor, I would have clean it, but I didn't see. Q.: Well, you only cleaned it on this occasion because the lady had fallen over. A. INTERPRETER: I came after the lady. 10, 20 minutes. Maybe not sure. Q.: Well, you saw the manager and the security guard there? A. INTERPRETER: Yes. They were there. Q.: And you decided to clean it up then, didn't you? A. INTERPRETER: Yes? A. WITNESS: Yes. Q.: Even though you didn't think it was your job? A. WITNESS: Yes."

1. The plaintiff submitted on the basis of the evidence that there were only two possibilities as to who had wet mopped the floor: first, the cleaner contracted by the occupier of the terminal or the first defendant as occupier of the coffee shop. She relied upon Mr Abrahim's evidence that he did not clean or mop the area before the plaintiff's fall and that the area in front of the coffee shop was the responsibility of the first defendant to support the assertion that it could only have been the first defendant that had wet mopped the area.
2. I disagree. First, Mr Abrahim's evidence was to the effect that the practice of the cleaners employed by the second defendant was to mop a large spill with a wet mop. Secondly, his evidence was that the large cones were used by the cleaners employed by the second defendant. Thirdly, Mr Abrahim did not know whether any cleaner apart from himself (and there was at least one other working at the time) had mopped the floor prior to him. Fourthly, even though he thought (wrongly) that it was not the cleaners' responsibility to clean the thoroughfare, he in fact did so if he noticed that it was dirty or otherwise needed cleaning. Fifthly, there was no evidence at all to suggest that the first defendant had, or had access to a wet mop or indeed had access to, or had ever used the large yellow cones, one of which was placed near the wet area in the thoroughfare. I am satisfied on the basis of these matters that if the area had in fact been wet mopped it was by the second defendant.
3. I note in this respect that Counsel for the plaintiff suggested that I ought to draw an inference from the first defendant's failure to adduce evidence concerning the wet mopping of the floor. The problem with that submission is that there was never a case for the first defendant to answer in respect of wet mopping as the plaintiff's case had only ever been on her pleadings, a case of omission rather than commission. For that reason, either no inference can be drawn, or if such an inference might be drawn, I would not draw it.
4. In conclusion, the evidence establishes that there was a wet area in the thoroughfare stretching from near the entrance of the terminal to just beyond the large yellow cone which was placed almost midway between the café and the seated area. The evidence does not establish that the first defendant was responsible for the water being there or that the area had been wet mopped; however, if the area had been wet mopped, it is most likely that a cleaner employed by the second defendant had done that. Ms Hart entered the terminal, saw the warning cone but took no heed of it, walked onto the wet area and slipped and fell.
5. Any liability for the damages claimed by the plaintiff are governed by the Civil Liability Act 2002 (NSW) (CLA). The next step in the analysis of the plaintiff's case is to address the relevant provisions of that Act.

Civil Liability Act 2002 (NSW)

1. Section 5B(1) of the CLA provides that "a person is not negligent in failing to take precautions against a risk of harm" unless three matters are satisfied, namely: 5B General Principles … (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. … (Emphasis in original)
2. In determining the third of these matters, the Court is required by s 5B(2) to consider the following (amongst other relevant things): (2) … (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.
3. These matters must be addressed prospectively rather than with the wisdom of hindsight: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [31].
4. The risk here was that of slipping on the surface of the thoroughfare and sustaining some injury when landing on the floor. The precautions which the plaintiff said in her statement of claim the first defendant was negligent in failing to take are set out at [10] above.

The risk was something the first defendant knew or ought to have known

1. On the evidence, the first defendant either knew or ought to have known about the risk. First, one of its employees clearly looked at the wet area in the thoroughfare as she walked from behind the trolley and into the café. Secondly, and in any event, there was a large cone in the middle of the floor. Just as every one of the passengers walking into the terminal would have seen that cone, so too would each of the employees of the café. Thirdly, it was obvious from common experience that hard surfaces such as that on the thoroughfare were slippery when wet and that, being slippery, there was a risk that someone might fall and injure themselves.

The risk was not insignificant

1. The risk of falling on a wet hard surface was not insignificant. That is so, even though it appears that a number of passengers had walked safely over the wet area in the short period prior to the plaintiff's fall.

In the circumstances, a reasonable person in the first defendant's position would have taken the pleaded precautions

1. The critical fact here is that it was the second defendant, and not the first defendant, who had the responsibility for the thoroughfare. Given that the first defendant was a café, not a cleaning company, was not responsible for cleaning the thoroughfare and did not (except to the limited extent discussed above) use any part of the thoroughfare for its business, no reasonable person in its position would have taken the precautions asserted by the plaintiff.
2. In this respect, the burden of undertaking those precautions is important: see sub-s 5B(2)(c). In essence, the plaintiff would have the first defendant interrupt the ordinary course of its business (preparing and serving takeaway food and coffee) to look after an area over which it had no control, no contractual rights or obligations and to clean the floor, stand in the wet area until it dried, and wave away passengers to prevent them even walking across that area and to acquire and place non-slip matting. All of that from the confined space of the kiosk, and in spite of the fact that SACL and, in turn, the second defendant was in fact responsible for the area. In the circumstances, the precautions suggested by the plaintiff would impose an intolerable burden on the first defendant.
3. In addition, given the placement of the cone, the risk was an obvious one and there was no obligation to warn of it: s 5H(1) of the CLA.
4. In light of those considerations, I find that the first defendant was not negligent and the plaintiff's claim must fail.

Contributory negligence

1. If I am wrong about that I would find, for the reasons I have given at [62] above, that Ms Hart was negligent in failing to take heed of the warning cone and either to avoid the wet area by walking to the left of the cone or by walking with some caution over the wet area. Given that the obvious purpose of the warning cone was to ensure that passengers were on notice of the risk presented by the wet floor, Ms Hart's negligence was a significant cause of the accident and her injury. I accept the first defendant's submission that a deduction of 70% be made from any award of damages that might have been made.

Non-economic loss

1. At the date of the accident the plaintiff was 54 years old. She worked as a Customer Services Officer on long-haul flights for Qantas. As a result of her fall she suffered a frank injury to the neck of her right femur and still suffers a degree of physical discomfort. That much is not disputed by the first defendant.
2. The plaintiff also claims that she has suffered a degree of psychological injury as a result of the accident. There was some dispute about the plaintiff's psychological state, however there was a significant dispute about its cause.
3. The complicating factor is that the plaintiff was involved in a mid-air incident in 2010 when she was working on an A380 aircraft when its engine exploded shortly after taking off from Singapore. She took part in a class action against the manufacturer of the engine and, for that purpose, was diagnosed by Dr Robert Hampshire on 12 April 2016 as having post-traumatic stress disorder. That was only 11 days before the accident the subject of these proceedings. In July 2017 the plaintiff saw Dr Glen Smith for a psychiatric assessment in connection with these proceedings. Although she was directly asked whether she had any prior psychiatric conditions she specifically denied it. She also denied any prior condition when asked by the expert psychiatrist qualified by the first defendant, Dr Selwyn Smith.
4. There are two direct consequences of those denials. First, it undermines the plaintiff's credibility as a witness because the class action had only recently settled at the time she saw Dr Glen Smith and that claim was based on her psychiatric injury; and secondly, it undermines the evidence that there was any psychological impact of the accident at the terminal.
5. Dr Glen Smith and Dr Selwyn Smith, who were qualified by the first defendant, gave concurrent evidence in which they explained that the knowledge of the previous diagnosis of post-traumatic stress disorder effectively undermined the opinion found in their reports. In light of that, I find that the plaintiff has not established any causal link between her psychological state and the accident at the terminal.
6. Further, in light of the plaintiff's clear willingness to lie to the experts in order to advance her case, I treat her evidence about her ongoing condition with some scepticism. While I accept that she might suffer some discomfort sleeping and when she stands for long periods, that discomfort is insufficient to prevent her from working a job that requires long hours on her feet. I find that she has exaggerated her discomfort and conclude that her non-economic loss is 23% of the most extreme case. Pursuant to the tables in the CLA, that would amount to $27,500.

Past economic loss

1. The plaintiff was hospitalised and then had to undergo rehabilitation therapy for some time. As a result she could not work and so suffered economic loss for a closed period after the accident. As submitted by the first defendant, this loss is somewhat difficult to calculate as the figures claimed appear to be referrable to the plaintiff's gross income which would not properly reflect her loss. On that basis, the first defendant concedes that an amount of $25,000 could be allowed. However, as the plaintiff only claimed $26,119.57 I would allow that amount.

Future economic loss

1. This was agreed at $30,000.

Past out of pocket expenses

1. This was agreed at $23,882.26.

Future out of pocket expenses

1. It is difficult to assess with any accuracy the expenses that the plaintiff is likely to incur in relation to her injury given that I have found that she has exaggerated the extent of that injury and I have discounted any psychological injury. There is no question that she will need to incur some expenses, however I consider that there is insufficient basis in the evidence to support her claim for $84,926.35. That said, even on a rough estimate, having regard to the plaintiff's past expenses, the first defendant's estimate of $10,000 is too low. In all the circumstances, I would allow $20,000 in respect of future out of pocket expenses.

Past gratuitous care

1. The plaintiff led evidence that she received care in the form of cooking and general housework from her husband, sister and a friend, the latter two of whom took turns to look after her in the immediate aftermath of the accident. The first defendant accepted, as do I, that this amounted to more than six hours per week for some period. However, within six months Ms Hart returned to her job, being away from home for 3 to 4 nights each week. During that time the evidence did not show that there was a reasonable need for services to be provided (sub-s 15(2)(a)) and that that need had arisen solely because of the injury.
2. In this respect, I accept the first defendant's submissions that the opinion of the occupational therapist relied on by the plaintiff (especially to the effect that care was reasonably required for six months) was undermined by the fact that it was based on the assumption that all the care was necessitated by the injury caused by the accident at the terminal. However, Ms Hart was assessed in 2016 as requiring ongoing care because of the psychiatric injuries suffered in the 2010 incident on the A380 flight from Singapore. Once that need is taken into account it is difficult to be satisfied that the plaintiff met the threshold requirements in s 15 of the CLA. For that reason she is not entitled to any award in respect of past gratuitous care.

Future domestic services

1. The plaintiff claims an award of damages to reflect her need for future commercial care. However, there is no need for such care on the basis that it is provided gratuitously by the plaintiff's husband: Miller v Galderisi [2009] NSWCA 353 at [14] - [25]. In respect of gratuitous care, for reasons I have given in respect of past care, there is no evidence that there is a reasonable need for services that has arisen solely because of the injury and which is for at least six hours per week.

Conclusion on damages

1. If my conclusion on liability is wrong, my assessment of the damages suffered as a result of the first defendant's negligence would be $127,501.83. Reducing that by 70% to account for the plaintiff's own negligence, I would give judgment for the plaintiff in the amount of $38,250.55.

Offset

1. The first defendant argued that any award of damages ought to be offset by the amount of the sum received by the plaintiff in settlement of her claim against the second defendant, namely $70,000. The plaintiff argued that that sum was received in respect of the plaintiff's legal costs and that, in any event, the Court has no power to make such an adjustment. The plaintiff argued that in order to obtain this result the first defendant ought to have, but did not, bring a cross-claim against the second defendant (presumably under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946). The plaintiff's primary argument seems to be inconsistent with a number of decisions of the Court of Appeal including James Hardie & Co Pty Ltd v Wyong Shire Council 48 NSWLR 679; [2000] NSWCA 107. However, the issue is not without difficulty and, given that the matter was not fully argued before me and is only necessary to resolve if I am wrong about the question of liability and the small amount of the damages I would award in any event, I will not consider it further.

Conclusion

1. There will be a verdict for the first defendant. The plaintiff must pay the first defendant's costs.

Endnotes

1. The area in the terminal beyond the security checks where passengers wait for and ultimately board the aircraft.
2. Exhibit 6, tab 11.
3. PS [27].
4. PS [28].
5. See CCTV footage at 7:06:10.
6. See CCTV footage at 7:06:24.
7. Which the plaintiff referred to as an "esky", the slang for luggage taken by air stewards on board a flight.
8. See CCTV footage at 7:06:27.
9. See CCTV footage at 7:06:29.
10. See CCTV footage at 7:06:30.
11. See CCTV footage at 7:06:31.
12. See CCTV footage at 7:06:32.
13. See CCTV footage at 7:06:33.
14. Mr Nazir Abrahim who gave evidence.
15. 20 August 2018 and 7 February 2019, Exhibit 2, pp78-127 and pp128-132 respectively.
16. Transcript 109.40-43.
17. Transcript 110.24.
18. Exhibit 2, pp133-148.
19. Transcript 127.28.
20. Transcript 127.33.
21. Transcript 127.44-128.23.
22. The transcript says "fill" but that is a typographical error and should be "film".
23. The transcript says "fill" but should be "film".
24. Transcript 134.16.
25. Transcript 148.41.
26. Transcript 149.33.
27. Transcript 149.48.
28. Transcript 152.9.
29. Transcript 152.46.
30. Transcript 153.12.
31. Transcript 153.20.
32. Transcript 154.20.
33. Transcript 154.24.
34. Transcript 157.1-4. 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: 14 June 2019