THE OWNERS OF REFLECTIONS WATERFRONT APARTMENTS WEST TOWER STRATA PLAN 58085

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : ROBINSON -v- THE OWNERS OF REFLECTIONS WATERFRONT APARTMENTS WEST TOWER STRATA PLAN 58085 [2016] WADC 22

Negligence - Personal injuries - Slip case - Cause of personal injuries - Absence of evidence as to cause of accident

Jackson v McDonald's Australia Ltd [2014] NSWCA 162

Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352

Robinson v The Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085 [2016] WADC 22

1 REASONS OF THE COURT: On 13 October 2017, this court heard an appeal by the appellant (Ms Robinson) against a decision of Stone DCJ in Robinson v The Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085[1] (primary decision). His Honour had dismissed a claim in negligence by Ms Robinson against the respondent (strata company), in relation to injuries sustained by Ms Robinson when she fell in the common area of a strata complex managed by the strata company.

2 The appeal notice was filed out of time, and an application for an extension of time in which to appeal has been referred to the hearing of the appeal.

3 The court dismissed the appeal with reasons to follow. These are our reasons.

4 The strata complex is known as The Reflections Waterfront Apartments West Tower (West Tower). The West Tower is a 24-storey tower of 72 strata titled residential units in East Perth. It is opposite The Reflections Waterfront Apartments East Tower (East Tower), which mirrors the West Tower.

5 There is a public access easement over Burt Way, which is between the West Tower and the East Tower. Pedestrians use the West Tower walkway and the East Tower walkway as a short cut to obtain access to Adelaide Terrace from Terrace Road and Burt Way.[2]

6 Ms Robinson, who was born in December 1944, resided in the West Tower from 2009 to 2013.[3]

7 On Saturday, 18 February 2012, Ms Robinson had planned to meet her daughter and grandchildren at their home in Yanchep.[4] She packed various items for the journey, and left her unit carrying her handbag over her right shoulder, a picnic bag in her right hand and a bag of clothes in her left hand.[5]

8 As Ms Robinson went to leave the West Tower, she slipped and fell on the West Tower walkway sometime between 11.00 am and noon. She injured her right shoulder by colliding with the wall of a brick garden bed.[6]

9 When Ms Robinson tried to get up, she felt a lot of pain in her shoulder. After being helped to her feet by an unknown man, Ms Robinson gave evidence that she 'looked to see what had made [her] slip', and she saw a stain on the ground. She gave evidence that she had not seen the stain beforehand and that there was nothing to alert her to hazards.[7]

10 Ms Robinson was assisted to her car and drove to a pharmacy, where she was given painkillers and a sling for her injured right shoulder. She was eventually taken by a friend to Royal Perth Hospital Emergency Department. Before going to the hospital, she had gone back to the pharmacy with her friend to pay for the painkillers and the sling, which she did at 2.48 pm, and to collect her car to drive to the hospital.

11 At the hospital, Ms Robinson had an X-ray and was informed that she had broken her right humerus. She was given a script for pain medication and was provided with a disc of the X-ray to give to the Royal Perth Hospital orthopaedic surgeon on 21 February 2012.

12 Ms Robinson was then driven to a chemist for the painkiller script and taken home to her unit.[8]

13 The next morning, Sunday, 19 February 2012, Ms Robinson's former de facto partner (Mr Thomas) visited her at around 8.00 am to 8.30 am. They subsequently went to the West Tower walkway where Mr Thomas filmed with his mobile phone a stain, being a dark grey patch on a grey tile, where Ms Robinson fell.[9] There were various other stains depicted on other tiles in the video.[10]

14 On 23 February 2012, Ms Robinson underwent surgery on her shoulder and was hospitalised for two days. She was unable to work for seven weeks and commenced physiotherapy eight weeks after the surgery.[11]

15 In late February 2012, Ms Robinson saw her solicitor and instructed him to write to the strata manager of the West Tower. On 7 March 2012, Ms Robinson's solicitor gave written notice of her claim.

16 There was evidence that CCTV footage of the areas scanned by the strata company was only retained for 14 or 30 days.[12] On 28 March 2012, Ms Robinson's solicitor wrote to the strata company's insurance company. He provided details of the accident and said that 'as it occurred just outside the Burt Way entrance to the building I'm sure her fall was captured on CCTV within your control'.[13] Neither Ms Robinson nor her solicitor requested the strata company or others to retrieve CCTV footage of the event within 14 or 30 days of 18 February 2012. Also, there was no evidence of such a request by Ms Robinson or her solicitor made after that period.[14]

17 In October 2012, June 2013 and September 2014, Ms Robinson underwent further surgery on her right shoulder and was hospitalised for a total of seven more days. She was unable to work for approximately ten weeks and worked part-time for one week.[15] She retired from work on 28 March 2014.[16]

18 On 9 January 2015, Ms Robinson also underwent surgery on her left shoulder and was hospitalised for two days. She was unable to work for three weeks.[17]

19 Ms Robinson commenced proceedings in the District Court against the strata company alleging,[18] in effect, that the strata company was negligent in failing to:

(c) install a warning sign 'at the stain site' and/or engage an attendant to warn invitees against stepping on the stain;

(d) institute a sufficiently regular cleaning regime to protect invitees from spills and stains on the West Tower walkway, and to implement a system of at least three daily inspections and cleaning where necessary by a cleaner permanently on site, supplemented by ad hoc cleaning checks conducted daily; and

(e) detect and/or remove the stain promptly or at all.

20 Ms Robinson called evidence from cleaning contractors to the following effect.[19] Mr Carey had the cleaning contract for the West Tower from 2010 to January 2012, at a cost of $45,000 per annum. He worked seven days per week between 7.00 am and 10.00 - 10.30 am. He inspected and cleaned daily. He cleaned the common areas including the West Tower walkway. The West Tower walkway collected a variety of rubbish, which included rubbish blown over from the East Tower. The rubbish included bottles, half-eaten food, papers and cigarette butts. He would collect between one quarter and one half of a 'black garbage bag' of rubbish. Mr Carey used a string mop and bucket for spillages and a blower vac, 'if it got that bad', to blow small leaves and dust. He mopped the walkway 'mostly when required', and on average four times per week. He was also supervised on a daily basis for about half an hour by Mr Turibaka.

21 Impex took over the cleaning contract for the West Tower in February 2012. It had started to clean the East Tower a couple of years beforehand.

22 Mr Aleksoski of Impex explained that the tender for the weekdays in the West Tower contract was the same as the tender for the weekdays in the East Tower contract, but that the weekends were negotiated differently. He said that the West Tower had two cleaners for weekdays, and his parents (who owned the business) were the cleaners on the weekends. The West Tower weekday cleaners also cleaned the East Tower on weekdays and weekends. They worked at the West Tower from Monday to Friday for three hours, each from about 9.00 am to 12.00 pm, after they had finished at the East Tower. Their cleaning included all external common areas and the West Tower walkway. The weekend cleaning was limited to internal areas.[20] Mr Aleksoski estimated that no more than 45 minutes would be spent collecting leaves and rubbish from the West Tower walkway and around the front of the building.

23 Ms Robinson also gave evidence that she owned an apartment in Infinity Apartments in Adelaide Terrace, Perth prior to 2013. Infinity Apartments comprise 110 apartments on 22 floors with a café on the ground floor. In 2012, cleaning, including external common areas in front of the café, occurred seven days per week at a cost of $55,000 per annum. Ms Robinson also gave evidence of cleaning at Rise Apartments in Adelaide Terrace, Perth, comprising 78 apartments on 26 floors, and a restaurant on the ground floor. She also gave evidence of cleaning at Condor in St Georges Terrace, Perth, comprising 205 units, mostly residential but with two floors of commercial premises. She said that cleaning was undertaken seven days per week at the Rise Apartments and Condor. The cleaning expense at Condor was $96,000 per annum, and at the Rise Apartments it was $68,000 per annum.[21]

24 In relation to her fall on the walkway on 18 February 2012, Ms Robinson's evidence-in-chief included the following:[22]

Now [as to the fall]? --- When I got up I naturally looked to see what had made me slip, as you would do, and saw the stain.

25 In cross-examination her evidence included:[23]

So the stain, what was it?---I don't know.

...

So the cleanliness or otherwise, whether there was rubbish, we just don't know about?---All I know, there was a stain there, sir. That's all.

And a stain was - I was about to ask you?---I don't know what it was.

At all?---At all. All I know - I'd walked that area so many times. I never slipped.

No?---And this particular day when I got up after getting myself together, as you would do, you'd think, well, what the heck did I slip on? So I looked down, and that's when I saw the stain, and that's - truth.

26 The judge referred to s 5 of the Occupiers' Liability Act 1985 (WA) and s 5B, s 5C and s 5D of the Civil Liability Act 2002 (WA) (CLA). As his Honour noted, s 5D of the CLA provides:

In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

27 The judge found that on Ms Robinson's evidence:[24]

(b) she saw nothing before her fall and observed a stained tile after the fall;

(c) she did not know what the stain was and she had no idea of its composition; and

(d) the accident was not reported immediately or at all.

(a) there was no evidence of what the stain was upon which Ms Robinson allegedly fell, or how it got there;[25]

(b) there was no evidence as to whether the stain was wet or dry;[26]

(c) there was no evidence that Ms Robinson fell on a patch of oil or grease;[27]

(d) there was no evidence that the stain was a spill stain;[28]

(e) it was not known what the constitution of the stain was;[29] and

(f) there was no evidence that the stain was slippery.[30]

29 The judge also found that, in the vicinity of the stain on the grey tile identified by Ms Robinson as the stain upon which she slipped, there appeared to be other 'stains' on three of the grey tiles, but there was no evidence as to whether these other 'stains' were 'stains or something else [and] [t]here was no evidence as to whether they had anything to do with the stain identified by Ms Robinson and, if so, were present on 18 February 2012'. His Honour said that he was unable to draw any inferences in connection with the other 'stains' because 'to do so would involve speculation or guesswork'.[31]

On the totality of the evidence it seems unlikely that the stain depicted in video footage ... taken on 19 February 2012 ... in the state in which it appeared, whatever it was, caused Ms Robinson's right foot to slip. I accept the defendant's submission that 'the cause of the fall is purely speculative'.

Accordingly, I am not satisfied that Ms Robinson has established that she slipped and fell on something on the tiles of the West Tower walkway. I am not satisfied that Ms Robinson has established that the defendant caused or materially contributed to her fall and injury.

31 His Honour then went on to consider whether, in effect, even if the floor was slippery, the strata company failed to exercise reasonable care in relation to its system for cleaning the walkway. The judge said that he found Ms Robinson's evidence of the cleaning regime for Infinity Apartments and Rise Apartments of no assistance because of the obvious need for daily cleaning of the common areas associated with their respective food outlets. He also attached little weight to Ms Robinson's evidence concerning Condor, as it comprised nearly three times as many residential and commercial units as the West Tower.[33] His Honour said that the only comparable system of cleaning was that provided by the evidence of Mr Aleksoski of the system of cleaning for the East Tower, which was almost the same as that for the West Tower.[34] The judge continued:[35]

In my view, on the available evidence, the defendant's system of cleaning in place at the relevant time which involved a cleaning contractor for $57,376.26 per annum cleaning the common areas Mondays to Fridays between the hours of 9.00 am and 12.00 pm and regular inspections by an owner seven days a week was appropriate and reasonable. I have reached that finding having particular regard to 'the nature of the premises' (a 24-storey tower of 72 strata titled residential units built in 2009); 'the ability of (Ms Robinson) entering the premises to appreciate the danger' (Ms Robinson was an owner and resident of a unit, she was aware of the state of cleanliness of the West Tower walkway, the walkway was in plain view of the front entrance glass doors and the stain upon which she claimed she fell was a matter of metres from the front entrance glass doors on a grey tile adjacent to a white tile); and 'the burden on (the defendant) of eliminating the danger or protecting (Ms Robinson) entering the premises from the danger as compared to the risk of the danger to (Ms Robinson)'. I find there was no breach of duty by the defendant.

32 Finally, the judge further considered whether, in effect, even if the system of cleaning was inadequate, the strata company's failure in that regard caused Ms Robinson's injury. The judge said:[36]

Ms Robinson 'was required to prove on the balance of probabilities that the defendant's negligence was a necessary condition of her harm. The defendant's [alleged] negligence lay in its failure to employ a system for the periodic inspection and cleaning of (the West Tower walkway) area. Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here (Ms Robinson) was required to prove that, had a system of periodic inspection and cleaning of (the West Tower walkway) been employed on the day of the fall, it is likely that (the stain or whatever it was) would have been detected and removed before she (exited the entrance to the West Tower.)': Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 [32].

I accept the defendant's submission

'that, determined prospectively, there was nothing to put the defendant on notice that the system of cleaning at the premises would create a foreseeable risk of harm. There is no evidence whatsoever to support the notion that a foreseeable risk existed.'

In the circumstances of this case, when it was not known what, if anything Ms Robinson slipped on; what the constitution of the stain was and when it came to be there, it is difficult for Ms Robinson to establish whether a system of periodic inspection and cleaning of the West Tower walkway on weekends, had it been employed by the defendant, would have detected or removed the stain or whatever it was. I find that Ms Robinson has failed to establish that a different system of periodic inspection and cleaning of the West Tower walkway on weekends, had it been employed by the defendant, would have minimised or avoided her fall and injury.

33 In the event that he was wrong about liability, the judge proceeded to assess Ms Robinson's damages.

34 There are three grounds of appeal. There is also a schedule of findings and evidence pursuant to Consolidated Practice Direction 7.4.[37] The appeal is against the findings on liability. There is no appeal against the provisional assessment of damages.

35 Ground one alleges, in effect, that the judge erred in fact and law in finding that Ms Robinson failed to prove causation, in that the judge erred:

1. at [40], in finding that Ms Robinson failed to prove that the stain depicted in the 19 February 2012 video caused her right foot to slip;
2. at [53], in finding that Ms Robinson failed to prove what, if anything, she slipped on;
3. at [41], in finding that Ms Robinson was confused as to what she believed caused her to slip and fall; and
4. at [46], in finding that Ms Robinson failed to prove that she slipped on something on the tiles of the West Tower walkway.

36 Ms Robinson alleges, in effect, that the judge should have instead made the following findings:

1. Ms Robinson slipped on a stain on a tile on the West Tower walkway;
2. that slipping motion caused her to fall over and sustain a fracture injury to her right humerus; and
3. had the stain not been present on the tile, Ms Robinson would probably not have slipped as she had not done so on previous occasions when traversing this area.

37 Ground 2 alleges, in effect, that the judge erred in fact and law in finding that the strata company had an adequate and reasonable cleaning regime in place at the relevant time. It is submitted that there was no weekend cleaning regime in place for the walkway, that there was no alternate informal cleaning regime in place, and that reasonable care required the strata company to have a cleaning regime in place to inspect and remove slipping hazards at regular intervals and at least once daily (inclusive of weekends). It is also alleged (as ground 2(b)) that the judge erred at [50] in finding that the strata company's cleaning regime was appropriate and reasonable, at [53] in finding that Ms Robinson failed to prove that another system of inspection and cleaning would have minimised or avoided her fall and injury, and finally in finding that the strata company was not negligent in providing its cleaning regime.

38 Ground three appears, in substance, to be a conclusionary ground consequent upon the first two grounds. It is alleged that the judge erred in finding that there was no breach of duty by the strata company, that a different inspection and cleaning regime would not have minimised or avoided Ms Robinson's fall and injury, and that there was no negligence on the part of the strata company.

39 It is also alleged that the judge erred in failing to find that as a direct consequence of the strata company's fault in not installing any or any adequate cleaning regime for the West Tower walkway, and especially on weekends, the strata company caused or significantly contributed to Ms Robinson's harm pursuant to s 5C of the CLA, or, if not a direct consequence, then the strata company was responsible for Ms Robinson's harm pursuant to s 5C(2)(a) and s 5C(4) of the CLA, and Ms Robinson had discharged her burden of proof pursuant to s 5D of the CLA as to causation of her injury.

40 Ms Robinson's written submissions consist of introductory submissions about the law of negligence in its statutory setting generally and then, in effect, four principal submissions relating to one or more of the grounds of appeal.

41 Ms Robinson's first principal submission is said to relate to grounds 1 and 3. It is submitted, in effect, that the strata company owed Ms Robinson a duty of care to take precautionary steps to keep the West Tower walkway clean, and thereby avoid the foreseeable risk of a person slipping and injuring themselves, and that the standard of this duty is 'a high one in fulfilment of which the [strata company] failed to comply'.[38] In this regard, Ms Robinson makes a number of further submissions under the heading 'Findings of Fact sought by the Plaintiff at trial as to causation'. These include submissions to the effect that there was no cleaning of the West Tower walkway, that the cleaning contract with Impex did not include any cleaning of the walkway at any time, that there were no cleaners in attendance at the West Tower throughout the month of February 2012, and that the strata company failed to put in place equivalent measures to those in place at the East Tower.[39]

42 Ms Robinson's second principal submission is said to relate to grounds 1, 2 and 3. It is to the effect that Ms Robinson was the only person who gave evidence about how she fell, and that, while her evidence was amply supported and believed by the judge, his Honour failed to make any inference favourable to Ms Robinson as to what probably caused her to fall (namely, slipping on the stain) and instead found that she exhibited confusion.[40] In this regard, Ms Robinson refers to evidence of her good character, and submits that the judge made no adverse findings as to her credibility.[41]

43 Ms Robinson's third principal submission is said to relate to ground 2. It appears to be to the effect that the strata company's omission to provide any weekend cleaning for the West Tower walkway caused Ms Robinson's injury.[42] In relation to this submission, Ms Robinson points to various transcript references and exhibits concerning the cleaning systems provided by Mr Carey and Impex.[43]

44 In oral submissions, Ms Robinson referred to certain evidence given by Mr Carey. Mr Carey was called as a witness by counsel for Ms Robinson. As noted above, Mr Carey had the cleaning contract for the West Tower, which was terminated in January 2012. He was asked in-chief,[44] 'Did you see any liquid on the walkway in late 2011, early 2012?' He said he did. He was then asked in-chief, 'And where did that liquid come from?' He said, 'Assume the sky or whatever. People dropped, like, coffee cups, that sort of stuff'. He was asked, 'what was the frequency of spillages on that walkway?' He said it could vary and be different at different points in time.

45 Ms Robinson's fourth principal submission is said to relate to ground 2(b). It is to the effect that the strata company's cleaning regime was inadequate in that, amongst other things:[45]

(a) the strata company failed to engage its professional strata manager to negotiate the terms of its cleaning contract with Impex for the West Tower, which should have covered external cleaning for seven days per week;

(b) the strata company's cleaning contract with Impex involved no external common area cleaning at any time at the West Tower, including weekends when the strata company knew foot traffic was heaviest;

(c) any spills on the West Tower walkway would remain in situ from at least 12.00 pm on Friday to 9.00 am on Monday, which was an unreasonably lengthy time;

(d) the cleaning contract with Impex for the West Tower was deficient when compared with the cleaning contract with Impex for the East Tower, and made no provision for extra cleaning attendances to take account of ad hoc spillages or an email system to alert cleaners to spillages;

(e) the strata company had not appointed a committee of residents (as had been done for the East Tower) to inspect on weekends and make good any ad hoc spillages; and

(f) the strata company knew of water pooling on the West Tower walkway in the area in which Ms Robinson fell due to a blocked drain in the raised garden bed retaining wall.

46 Ms Robinson submits that the cleaning system provided by Impex was inferior to that provided by Mr Carey, and that the strata company should have instituted further precautionary steps, such as an improved inspection and cleaning system for the walkway, and should have adopted the same cleaning system as used in the East Tower.[46]

47 The appellant has not established any error in the judge's finding that there was no evidence that the stain on the floor caused her to slip. The appellant was required to prove her case on the balance of probabilities. Although her evidence was that she 'looked to see what had made [her] slip' after she fell, she gave no evidence that she observed that the area was wet, oily, greasy or that she had observed the presence of any other substance of a slippery nature. The video evidence taken the following day reveals nothing about the nature or character of the stain, other than it appears as a discolouration of a small portion of a single tile. None of the evidence referred to in Ms Robinson's written submissions assists her. Mr Carey's evidence, to which Ms Robinson made particular reference in oral submissions, did not address the state of the walkway floor at the particular point where Ms Robinson fell. Nor did it address the state of the floor at the date of the incident in question. There was no expert evidence that the discolouration of the tile was likely to have been caused by the presence of a slippery substance on it on 18 February 2012. In this context, the mere fact that she fell in the vincity of a discolouration on a tile does not give rise to 'a reasonable and definite inference'[47] that this part of the floor had a slippery substance on it when she fell. There was an 'evidentiary vacuum'[48] on this issue which was fatal to Ms Robinson's case.

48 Accordingly, ground 1 should be dismissed. Grounds 2 and 3, which are premised on the stain having caused Ms Robinson to slip, cannot avail Ms Robinson unless she succeeds on ground 1.

49 That conclusion is sufficient to dispose of the appeal. It may also be added, however, that absent evidence as to the nature and character of the stain, it could not be inferred that the stain, the tile or the walkway represented a 'danger' within the meaning of s 5 of the Occupiers' Liability Act, or a 'risk of harm' within the meaning of s 5B(2) of the CLA.

50 Accordingly, there was no merit in the appeal, and the appeal was dismissed.

[1] Robinson v The Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085 [2016] WADC 22.

[12] Primary decision [18] - [19]. There was also evidence from a resident of the East Tower that, on occasion, she had been involved in retrieving video data that was nearly five weeks old from the East Tower CCTV facility: [20].

[18] Statement of claim, par 21; BB 32.

[20] Mr Aleksoski's evidence was that the internal areas of each of the East Tower and the West Tower were cleaned on Saturdays for two hours and that on Sundays, the cleaning was also only for internal areas and was initially for two hours in the East Tower and half an hour in the West Tower: GB 249 - 250, 256, 260 - 261.

[24] Primary decision [41.1], [41.2], [41.4], [41.6], [41.8].

[38] Appellant's submissions, page 5; WB 13.

[39] Appellant's submissions, page 6; WB 14.

[40] Appellant's submissions, page 8; WB 16.

[41] Appellant's submissions, pages 8 - 9; WB 16 - 17.

[42] Appellant's submissions, page 9; WB 17.

[43] Appellant's submissions, pages 10 - 12; WB 18 - 20.

[45] Appellant's submissions, pages 12 - 13; WB 20 - 21.

[46] Appellant's submissions, page 13; WB 21.

[47] Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352, 358.

[48] In the language of Barrett JA in Jackson v McDonald's Australia Ltd [2014] NSWCA 162 [122].