Kalolane Pty Limited v Hungry Jack's Pty Limited

The fall

1. Mr Maher drove a truck to the premises at about 9am on 5 April 2013 to deliver some foodstuffs which were contained in the rear of the truck. After parking on the premises he commenced making the delivery of the boxes of goods. The boxes were on pallets in the rear of the truck. Mr Maher removed the boxes from the truck onto a trolley which he then wheeled across a concrete covered area, up a short concrete ramp about 50cm in length and 10cm in height then through the rear door at the top of the short ramp and onto a tiled floor inside the Hungry Jack's restaurant. Delivery of the last pallet of boxes required Mr Maher to climb into the rear of the truck and move the boxes of goods closer to the rear opening of the truck. The floor of the truck was a corrugated aluminium surface.
2. After almost completing his delivery and moving the final set of boxes to the rear of the truck Mr Maher intended to descend from the truck. In the course of moving backward at the rear of the truck Mr Maher fell, causing injury. His head struck an object in the fall, his ear was cut, and he felt pain in his left wrist and left side. He eventually got himself up and, he said, completed unloading the truck, although he also stated that he did not walk into the restaurant again after the fall.
3. Mr Maher could not remember if he had a conversation "with the manager" of the Hungry Jack's restaurant, Joshua Duke, about what happened, nor could he remember if he said anything about grease on his work boots. Mr Maher did, however, subsequently fill out a report with Hungry Jack's. A call for that report, without notice, was made but not immediately answered. A typed document was subsequently used in the cross-examination of Mr Maher and appeared to have been produced inter partes but no report, typed or handwritten, was tendered by either party.
4. After submissions, the parties consented to me viewing and admitting the document produced under s 45 of the Evidence Act 1995 although the insurer made submissions about its limited relevance and value. It appears to be a record of Mr Duke made about 9.17am on 5 April 2013 that states "Delivery driver fell from truck striking head on oil dump canister" and "Truck driver fell from back of the truck and hit his head on the oil dump canister".
5. Mr Maher then returned to the cab of the truck, drove back to his employer's premises and reported to his employer. He gave evidence that he signed an accident report at his employer's premises, although that report also was not otherwise mentioned or tendered in evidence. He then attended Muswellbrook Hospital. The earliest record of the incident in evidence (apart from Mr Duke's record, referred to above) is a WorkCover certificate of capacity signed by Mr Maher on 16 April 2013, which contains a certificate by a medical practitioner which describes the incident as "fall - against industrial bin" as does a certificate signed 29 April 2013.
6. Mr Maher read those certificates before he submitted them to his employer.
7. Another certificate of capacity signed 10 May 2013 has a description of the incident as follows: "Injured himself at work on 5th April, fell out the back of a delivery truck (slipped). Thinks he walked through some grease or metal. Was about 1.5m up. Landed on his left side. Lumbar pain, pelvic and L knee pain since injury. xray pelvis, ultrasound left buttock - looking at gluteal insertions and SIJ's - all normal".

(a) The presence of grease on the Hungry Jack's premises

1. Mr Maher gave evidence that "just inside the - the main doorway it was very greasy and that, and there was water on the ground before you walked in" and "you could see the colour of the floor was greasy and when you walked on it it was very slippery". Mr Maher noticed it was slippery also on a "small ramp going up to it, up to the main doorway".
2. Mr Maher marked on a photograph the location of the small ramp. It was not the short ramp of about 50cm in length at the doorway referred to earlier, but a concrete section about 3 metres from the doorway which was said to be a ramp. The photograph showing the location of the ramp referred to by Mr Maher did not confirm that it was a ramp although Mr Maher's evidence of the location of a ramp was not challenged.
3. Mr Maher delivered a number of trolley loads of goods to the premises without any slipping incident.
4. Mr Maher was asked: "As you walked back and forth between the kitchen and the back of your truck, you did not actually see any grease on the kitchen floor or on any of the concrete outside the building did you".
5. Mr Maher responded, "Yes I did" and "Have you ever been out the back of one of them places".
6. Mr Duke, the restaurant manager, gave evidence that the tiles and concrete were clean, that each night the floor of the restaurant was cleaned with hot water and degreaser, scrubbed with a very heavy duty scrubbing brush and the water was "squeegeed" out of the restaurant, and that the rear concrete was high pressure cleaned early every second morning. It was cleaned the day before Mr Maher's injuries.
7. Mr Duke gave evidence that he walked several times on the tiles that morning wearing rubber soled, leather business shoes, and (like Mr Maher) he did not slip on the tiles or on the concrete. He said that Mr Maher fell after he "took a step back too far with the goods and fell to the ground". Mr Duke recanted in cross-examination, agreeing that he did not see Mr Maher fall, and in answer to why he gave the different version, stated "I'm not meaning to, I just remember what I can remember from a long time ago" and "[b]ecause that's what I can remember, coming to the back of the store. As I said, this is quite some time ago so I'm coming to the back of the store and remembering that".
8. Mr Duke conceded the need to clean oil and grease from the premises. He also conceded that from time to time there was a build-up of grease inside the restaurant that had not been caught by the night clean. He accepted that if you walked through a build-up of grease that grease might get caught on your boots, but stated that that was not where Mr Maher had walked. He asserted that the (grease) material did not go out the back door but into the grates and accepted that some of it "goes over the grates". The grates were about a metre inside the rear door. Mr Duke conceded it was possible Mr Maher "picked it up", presumably meaning that he picked up some grease on his boots.
9. Mr Duke's credit was damaged by his admission that his evidence in chief regarding seeing Mr Maher fall was incorrect. However, he was not challenged on his answers concerning the cleaning of the restaurant, the build-up of grease and the location of the grates. He was never asked whether grease was located on the small ramp some three metres from the back door. He accepted the suggestion that some of the cleaning material, presumably hot water, degreaser, and grease, "goes out", which, notwithstanding the possibly contrary earlier evidence, I take to be a reference to 'out the rear doorway'.
10. When asked to explain what he saw that caused him to say the floor was greasy, Mr Maher's evidence was that "you could see the colour of the floor was greasy" and that "when you walked on it, it was very slippery". I am not satisfied that the colour of the mustard-coloured tiles would reveal the grease. The floor's slipperiness, if such it was, may have been due to grease, water or both.
11. I am satisfied that some grease may have built up on the short ramp immediately outside the back door in the period of about 28 hours since it was last high pressure cleaned. I also accept that some grease had deposited on the floor since the floor was cleaned with hot water, degreaser and a scrubbing brush at the close of business the previous evening and also that some grease may have remained in the region of the grates. I am not satisfied that there was any grease on the small ramp some three metres from the back door.

(b) Negligence

1. Mr Maher accepted that because the vast majority of the premises that he visited used oil in their businesses, it might be slippery when he went about his work. He became conscious of the presence of grease and oil at various premises where he made deliveries, he was conscious that his boots may pick up grease, and his method to avoid an accident was to walk carefully, a procedure he also adopted on 5 April 2013, even before his first delivery there on that day.
2. Apart from the evidence from Mr Maher about the condition of the floor, there was no challenge to the adequacy of the method and regularity of cleaning the floor, and no alternative was advocated. Rather the insurer submitted that the cleaning must have been inadequate because grease was present.
3. I was not satisfied that the evidence of grease was such as alone to establish that the cleaning process was inadequate. Neither Mr Maher nor Mr Duke slipped on the internal floor or on the external concrete at any stage that morning. Mr Duke was not challenged on his evidence that the internal floor was clean, save for possible material around the grates.
4. Hungry Jack's accepted that it had a duty of care in relation to the inspection and cleaning of the premises, including the internal tiles and the external concrete. Bearing in mind s 5B of the Civil Liability Act 2002 that duty was relevantly to take reasonable care to ensure the surfaces where people walk are safe to walk on, including when heavy or dangerous objects might be being carried. It did not extend to ensuring at all times that there was no grease on any part of the floor or concrete or ensuring that a person who walked on the floor or concrete might not have some foreign matter attach to their footwear which could, at some other location or on some other surface, render their footwear unsafe.
5. I invited the insurer to identify any previous decision involving an occasion where a slip had occurred other than at the location where the breach occurred or where the foreign matter on the floor was located. No authority was identified. To impose a duty to guard against the possibility that someone might walk on some foreign matter, substantial or microscopic, on the premises, and then proceed to some other premises which might contain especially slippery flooring or flooring prone to become especially slippery when in contact with footwear with certain foreign substances attached, is to impose too high a duty. It would require the occupier to be familiar with the features not only of its own premises, but the features of all types of flooring elsewhere. That would be to impose an excessive burden, a relevant matter under s 5B(2)(c) of the Civil Liability Act 2002.
6. It must be supposed that the quantity of foreign matter attached to a person's footwear from a certain premises must inevitably decrease with the distance one walks from the premises where that attachment occurred. It follows that the likelihood of harm from grease on a shoe causing slipping at a location removed from the premises must be far lower than slipping from grease at the premises. That also is a relevant matter to consider under s 5B(2)(a).
7. In my view, a reasonable person in the defendant's position would not have taken precautions to prevent such damage, including because no such liability has so far been found in any authority to which my attention was drawn (see s 5B(1)(c)). Further, if slipperiness is felt by a person when walking on concrete, one would reasonably suppose that any risk would be lessened by the simple step of that person wiping the sole of one's shoe on the concrete or other convenient surface or with a rag to rid the sole of the foreign material, rather than by imposing upon the occupier the obligation to guard against future contact with an indefinite variety of flooring surfaces. In view of these matters, I am not persuaded that the risk of a slip in the back of the truck due to foreign matter on the sole of a boot was other than insignificant.
8. For these reasons, I am not satisfied that there was any breach of the duty of care.

(c) Grease on the boots and causation

1. After the last delivery Mr Maher climbed onto the back of the truck by putting a foot on a foothold and holding a railing, and thereby stepped up into the back of the truck. He picked up a box one at a time and put them towards the rear of the truck. Then, he said, "I went to turn around and I slipped". At that point his back was to the back of the truck, he was facing into the truck, his feet were close to the back edge of the truck, and there was no raised edge at the back of the truck. Mr Maher says he was "stepping out of the truck" backwards. If he was "stepping out of the truck" backwards there was no reason for him to "turn around". His intention was to put one leg down and secure his footing on a horizontal metal step, put the other foot on the step, then step backwards onto the ground. Instead, "one second" he was "standing at the back of the truck, facing with [his] back out and [his] front into the body of the truck" and the "next second [he was] on the ground". After recounting these matters Mr Maher then gave the following evidence: "You're got no memory whatsoever of what happened between those two points do you? - No You've got no memory at all of your foot slipping do you? - No".
2. The insurer submitted that those answers were unclear. It is true that I had earlier raised with counsel for Hungry Jack's the uncertainty that may arise from a negative answer to a negative question. Nevertheless, the manner of Mr Maher's answers clearly indicated an acceptance of the propositions put, namely that Mr Maher had no memory between the time he was standing on the truck with an intention to step down, and when he was on the ground after his fall. As Mr Maher stated: "As far as I know, I walked though grease and water and I fell out the back of the truck".
3. When asked whether by this answer Mr Maher meant "You've sort of thought about the fact that you fell and you're thought well, I must have fallen because of the grease" and Mr Maher answered "I don't know". Mr Maher agreed that: "The only time that [he] actually felt a loss of balance whilst standing upright in that whole time at Hungry Jack's was when [he was] standing on the corrugated aluminium back plate of the truck".
4. Mr Maher denied that there was "[a]nything in particular about it that made [him] think that [he] should be careful at that place, Hungry Jack's, when you were in the back of the truck" but stated: "I did walk though grease in the shop" and that he did have grease or oil on the bottom of the soles of his shoe, and that he also had water on the soles of his shoes from water on the concrete just outside the doorway, just before he fell.
5. Mr Maher in re-examination stated "I felt my leg go out from underneath me and it was the grease - it must have been the grease - and that's the last thing I remember." He also affirmed that Dr Soper's record stating "Fell out the back of a delivery truck (slipped)" is what he told Dr Soper, and also stated, "Well I remember my foot going out from underneath me", "I remember my foot slipping and then, that's it, I woke up on the ground" and the last thing he remembered before he woke up on the ground was, "My foot going out from underneath me".
6. In order to succeed on the question of causation, the insurer must establish the "factual causation" and "scope of liability" components of s 5D of the Civil Liability Act 2002. Factual causation is concerned with whether the negligence was a necessary condition of the occurrence of the harm. This involves a "but for" test: would the injury have occurred but for the negligence (see Wallace v Kam (2013) 250 CLR 375 at [16]).
7. The resolution of this question depends in part on whether Mr Maher slipped. If he did not slip, but simply took a backward step off the rear of the truck, then the presence of grease on the floor or concrete at Hungry Jack's is not a necessary condition of the injury, since the fall would have happened irrespective of the grease. If that is the case, the insurer must fail to establish the liability of Hungry Jack's to Mr Maher, as no argument was advanced that there were exceptional circumstances that would result in s 5C(3) having application.
8. But the converse is not true. That Mr Maher slipped is not proof that the negligence was a necessary condition of the injury. That Mr Maher slipped does not prove that his slip was caused by grease on his shoe, and grease on his shoe does not in any event establish that it got there because of Hungry Jack's negligence.
9. Mr Maher gave no evidence of rubbing the soles of his boots on the concrete as he walked, or on the kerb, or otherwise removing the foreign matter when he allegedly noticed it was slippery. The absence of these actions causes me to doubt whether his boots were or remained slippery as he continued to walk across the concrete, and whether the grease on his boots remained as noticeable as he asserts. There was no evidence that Mr Maher walked near the grates and there was no evidence that Mr Maher made any inspection of his boots to ascertain whether any slipperiness that he felt was due to grease rather than water or to otherwise identify its cause. The evidence disclosed no mention of grease by Mr Maher until more than a month after the incident.
10. I am not persuaded that Mr Maher slipped because of grease on his boots. Whilst he asserted that he slipped a number of times, he also gave evidence that he could not remember anything between standing on the truck and lying on the ground. His evidence that his foot went from under him is just as consistent with a misstep beyond the rear of the truck as it is with a slip.
11. Further, there was no explanation of why he slipped. If there was grease on his shoe, it caused no slipping on the allegedly slippery tiles, on the concrete, or on the aluminium surface in the truck until he reached the very rear of the truck. The statement of claim indicated that he slipped whilst pulling a box on the tray of the truck, but there was no evidence to that effect. Rather Mr Maher said he was standing on the tray at the rear of the truck, with an intention to dismount. Whilst he at one stage said "I went to turn around", the residue of his evidence was that he stood facing into the truck with an intent to descend backwards. Otherwise, he described no movement or forces that might have led him to slipping, and gave no description of the mechanics of his alleged slip. He did not identify which foot (assuming it was a foot) slipped, nor which part of his foot did not grab the surface. Other than that the internal truck surface was corrugated aluminium, there was no evidence about its detail. Sometimes his footwear was described as shoes, sometimes, boots. He did say the sole was "rubber, non-slip, water-resistant and oil resistant" although what these descriptions mean in the circumstances of this case remained unclear. There was no expert evidence of the impact of grease on the soles of his boots or on the aluminium floor of the truck.
12. In my view, it was just as likely that Mr Maher stepped from the back of the truck and any attempt to recover his position failed as his other foot "slipped" off the truck surface. Mr Maher submitted that this matter was not put by Hungry Jack's in cross-examination. But Mr Maher was asked what happened, and his answers - that he could not remember what happened, that his foot went from under him, that he was stepping out of the truck backwards - indicate that this matter is just as likely as a greasy slipping foot, in the absence of some evidence of what slipped, how, and the forces and movements that might lead to a slip.
13. I am also not persuaded that negligence was the cause of any grease being on Mr Maher's boots, for the reasons given in respect of negligence above.
14. In the result, there was no factual causation. I am not persuaded that negligence was a necessary condition of the fall which occasioned Mr Maher's harm.
15. Even if I am mistaken in respect of factual causation, I am not persuaded that the insurer has established the second element of causation or "scope of liability", that it is appropriate that Hungry Jack's liability extends to this harm occurring on the employer's truck rather than at the location of the alleged greasy floor. Section 5D(1)(b) has the effect, among others, of preserving the normative considerations inherent in the "common sense" test of causation endorsed in March v (E & M) Stramare Pty Ltd (1991) 171 CLR 506 at 515, 518-519; [1991] HCA 12, even if "common sense" is apparently no longer regarded as a helpful descriptor, see Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [11] and [23].
16. The considerations raised above under the heading of negligence militate against it being appropriate that Hungry Jack's liability extends to this harm. The ready ability of Mr Maher to remove the foreign substance, of which he was aware, from the soles of his boots likewise impacts against the appropriateness of liability.
17. In these circumstances, I am not satisfied that any negligence of Hungry Jack's caused the harm to Mr Maher so as to satisfy s 5D of the Civil Liability Act 2002.

Damages

1. In case I am mistaken, I should make some findings about damages.
2. For the purposes of assessing quantum, Hungry Jack's accepted several of the amounts proposed by the insurer as the appropriate level of damages in respect of particular heads of damage, and therefore I need make no separate finding about them. Those matters are: Head of damage ($) (a) past gratuitous assistance 20,384.00 (b) past economic loss 81,352.44 (c) past superannuation 9,746.00 (d) past out-of-pocket expenses 59,779.24

1. The matters in dispute are the relatively minor amounts of future out-of-pocket expenses (claimed at $5,848.00) and future superannuation (claimed at $4,197.48), as well as future economic loss (claimed at $35,096.00) and damages for non-economic loss.
2. So far as non-economic loss is concerned, Mr Maher was aged about 55 at the date of the accident. He has received physiotherapy, massage and hydrotherapy for his injuries, and has regularly taken analgesics such as Panadeine Forte for his pain. He had some sciatic pain which resolved after a cortisone injection nine months after the fall. His pain and knee problems led to him having about 7 months off work, and not returning to fulltime work until a further 12 months had passed. He claims a continuing level of back pain, and that his sleep has suffered.
3. Mr Maher has a diagnosed history of depression although this was being managed prior to the fall. His degenerative spinal and knee problems appear from the medical reports to be pre-existing and not fairly attributable to the fall. His treating specialist in Rehabilitation Medicine, Dr Seamus Dalton, reported: "I reviewed his MRI which reveals degenerative disc disease at a number of levels. He does have facet joint arthropathy at the lower lumbar levels and there is some minor annular bulging at L4/5 and L5-S1 but no evidence of neural compression. I feel that the underlying pain generator is likely to be his lower lumbar facet joints. I feel that his leg pain is probably somatic and particularly given that it has shifted from the right to the left side and I suspect that this is also partly related to tightness through his piriformis and gluteal muscles. He demonstrates some fear avoidant behaviour and has adopted passive avoidant strategies to manage his pain. He tells me that he has been advised to rest but I had a long talk to him today about pain mechanisms and explained that regardless of the underlying pathology there is certainly a mechanical component which is being compounded by his inactivity, poor core stability and lack of flexibility."
4. The insurer asserts that Mr Maher's non-economic loss should be assessed at 30 to 33% of a most extreme case, whereas Hungry Jack's submits a figure of 20 to 25%. In my view, if all the continuing injuries were attributable to the fall, the appropriate percentage of a most extreme case would be 25%, but in view of the significant impact of his pre-existing disc degeneration and old left knee injury, I accept the lower end of the range submitted by Hungry Jack's, namely 20% of a most extreme case. With the threshold reduction, the amount of this component is $19,500.
5. Hungry Jack's disputes there is any ongoing economic loss occasioned by the fall now that Mr Maher is working full-time. Although there is a $100 per week differential between Mr Maher's past earnings and present earnings, in my view this is not wholly attributable to the injury. There was no evidence of a comparable worker, or that the previous hours of work would have been available to Mr Maher had the accident not occurred. Further, in my view his pre-existing injuries would likely have had some impact on his ability to continue working at the pre-existing level.
6. In my view, the appropriate award for future economic loss, inclusive of lost superannuation, attributable to the fall is an amount of $10,000, and I allow $2,500 in respect of future out-of-pockets.
7. Thus, the notional damages recoverable by the worker would be the sum of these amounts: $ 20,384.00 $ 81,352.44 $ 9,746.00 $ 59,779.24 $ 19,500.00 $ 10,000.00 $ 2,500.00 $ 203,261.68

1. This amount makes no allowance for contribution by the employer for its responsibility for the damage, nor for contributory negligence.
2. I am not persuaded that any negligence of the employer was involved. Hungry Jack's submitted that the employer had a non-delegable duty to provide a safe truck and work boots, but there was no evidence that indicated that either the truck or the work boots were unsafe.
3. I accept that temporary inadvertence is insufficient to amount to contributory negligence: see Sungravure Pty Ltd v Meani (1964) 110 CLR 24; [1964] HCA 16 and Railways, Commissioner for (Qld) v Ruprecht (1979) 143 CLR 563 at 568, 570; [1979] HCA 37. However, Mr Maher gave an account that he was well aware of his slippery boots. If this is so, his failure to make any attempt to clean or remove whatever substance was causing that condition, but to persist in working whilst his boots were slippery, seems to me to be conduct by him which exposed him to a risk of slipping and falling. His failure to descend from the truck by grasping the handrail as he did when climbing onto the truck, at a time when he well recognised the slipperiness of his boots, is also an aspect of contributory negligence. In my view, the level of contributory negligence was in the order of 25%, and thus the recoverable notional damages of Mr Maher would be $152,446.26.
4. In view of my findings on liability, there should be a judgment for the defendant with costs. I will stay the entry of the order in respect of costs for two weeks in case either party wishes to seek an alternative costs order.

Orders

1. Accordingly the orders of the Court are: 1. Judgment for the defendant. 2. Plaintiff to pay the defendant's costs. 3. Entry of order (2) stayed for 14 days. 4. Any application for a variation of order (2) to be made by notice to the other party and provided to my associate within 14 days of today.

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: 28 May 2015