NSWNSWDC

Pavlis v Wetherill Park Market Town

[2013] NSWDC 331

District Court of NSW|2013-05-23|Before: Mr J

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Source facts

Court

District Court of NSW

Decision date

2013-05-23

Before

Mr J

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

Judgment 1The plaintiff, Mrs Fotini (Fay) Pavlis, moves on the Further Amended Statement of Claim filed on 30 September 2011. 2The claim arises from a fall suffered by Mrs Pavlis on 4 October 2009 as she was approaching an automatic teller machine (ATM) owned by the former second defendant when situated at premises owned by the first defendant, Wetherill Park Market Town. 3Those premises ("the shopping centre") were managed at all material times by the third defendant, Pretti Real Estate. 4Both liability and quantum are in issue. 5The case has a slightly unusual background which it is necessary to record. The matter was listed for hearing in October 2012. It commenced before another judge of this Court. On the second day of the trial, the plaintiff collapsed in the witness box during cross-examination and was taken by ambulance to hospital. The matter was necessarily adjourned but subsequently, the judge disqualified herself from further hearing the matter. It was relisted in May this year and came before me. The parties requested that the matter proceed as part heard and, accordingly, I read the transcript of the plaintiff's evidence and the exhibits that had been tendered. Thereafter, the trial continued in the usual way. 6Mrs Pavlis gave some further evidence in-chief relating to the pain that she says has developed in her left hand, and she was cross-examined.

[2]

Evidence of the plaintiff 7Mrs Pavlis, who was born on 18 July 1962 and at the date of the accident was forty-seven years of age, said that she migrated with her parents from Greece when she was twelve. She attended school in Australia. She commenced working whilst she was still at school. Apart from seven years working as a layout person for a newspaper, she has mainly worked as a packer. She was married within a year or two of leaving school. After leaving school, she worked fulltime from about 1980 until 2009, taking just a matter of months off when her children were born, and taking three to four years off work when she had a back injury in 2009. 8As a result of the injury she lost her job and was unemployed for about four years, until 2003. She received a lump sum of compensation for the injury and that money had been invested with a person who either lost it or misappropriated it. As a result, she and her husband had become bankrupt and lost their house. She became very depressed, although she recovered from that depression when she went back to work. The house that they currently live in is owned by their son, Pantelis. 9The plaintiff said that on 4 October 2009 at about 10am she parked her car in the Wetherill Park Shopping Centre car park and walked along a footpath in the direction of the St George ATM. It was a shopping centre she had frequented on previous occasions. It was, or had been raining and the pathway was wet. She said that because of the rain she was taking care. She was wearing flat shoes. As she approached the ATM, her right foot slipped and she fell to the ground. She said that she needed about "two steps to go to the ATM". She marked where she fell on a photograph. 10She said her right leg went backwards and she put her hand down to prevent her head hitting a pole. She said her right knee and hand took the force of the fall. She said that although she was shocked she was able to get up and attempt to use the ATM, however she blacked out and collapsed to the ground. Some people in the shopping centre attended upon her and someone called an ambulance. She was conveyed to hospital. 11The X-rays taken at hospital showed that she had fractured the distal radius; in fact, there were three fractures. She was given a cast and a sling. 12Two weeks later, she saw Dr Fitch, her GP. She had further X-rays that showed a comminuted impacted fracture of the distal radius. It was placed in a cast which remained in place for about eight weeks. 13She said she was not able to return to work as a packer and she lost her job. This upset her because she derived a lot of satisfaction from her job and her ability to perform it well. 14She said that she has ongoing problems with her wrist, principally pain and weakness; it prevents her from working and it prevents her for performing household duties. 15She was referred to Dr Kai, an orthopaedic surgeon. He noted the X-rays revealed a healed distal radius fracture with no angulation and some osteoarthritis in the joint in her thumb. Otherwise, the radiology was unremarkable. 16The symptoms did not abate and she went back to Dr Kai in April 2010 when he noted numbness in three fingers. He referred her for a bone scan and an MRI that showed evidence of synovitis and post-traumatic carpel tunnel syndrome. She reported right shoulder pain at this appointment. She had not previously complained of right shoulder pain to him. She had arthroscopic surgery on her shoulder in which a slight tear to the supraspinatus was debrided. Dr Kai told her she might need surgery for the carpel tunnel syndrome, although this has not been followed up. 17Mrs Pavlis said she obtained little relief from the surgery and, in fact, developed pain in her neck. 18She says she does not like and does not take pain-relieving medication; she takes something to help her sleep. In the past, but apparently not presently, she has taken antidepressants. 19Mrs Pavlis said before the accident she was very active and liked to go out and to dance. She enjoyed cooking. She did a lot of housework for her family and derived enjoyment and satisfaction from it. She was proud of the fact that she contributed to the household income, in particular, because her husband, although he is employed, has had several bouts of serious ill health, including a heart attack and surgery, and a stroke. 20In terms of her future, she made an application to Centrelink to get a disability pension but it was rejected and she is presently on Newstart. She has applied for jobs as a packer and she is intending to undertake a rehabilitation program in the near future as required by Newstart. The evidence was that rehabilitation program would happen in January 2014. 21I accept that the plaintiff left her car and proceeded via the footpath to the ATM in a direct route on 4 October 2009. I accept that she was undistracted and keeping an appropriate look-out for her own safety in the process. I accept that the plaintiff slipped as she approached the ATM on the wet painted surface. 22It was put to her that she was looking in her purse for her access card as she approached the ATM, which she denied. I accept her denial, but even if that were not so, such an activity is well within the scope of ordinary everyday activities, and I do not think it would constitute a failure to have due regard for her own safety. 23I would, therefore, make no finding of contributory negligence. 24Mr Pavlis gave evidence. He said that he used to help with the household tasks, including cooking, before the accident, but now he does a lot more. The impression I have is that he does the heavier tasks such as lifting dishes and pans in the kitchen, and the washing basket and so on. He said he did the gardening work, and had done it before the plaintiff's accident. I thought he was sincere and candid. He said his wife was a good cook and enjoyed cooking. She does not do that now. She does not go out much. She does not worry about her clothes or appearance. She is unhappy, he said. He said she tries to help around the house but cannot do much. He said she drives but only drives short distances. She gives instructions on the grocery shopping rather than participating. He said she complains of pain. He agreed that everyone in the house pitches in to help with things that need to be done. 25Ms Anna Pavlis, the plaintiff's daughter, gave evidence. She said that after her mother recovered from her back injury in 2003 and got over her depression, she was a happy, fine and normal person, who would go for walks, go to the hairdresser, and generally was of pleasant disposition. She said she would do all the household work and liked to cook but now does very little. She said she does not take care of her appearance now. She said, "Physically and mentally it has ruined her" - that is, the accident. She said that she complains of pain and cries a lot. She does very little around the house: no ironing, cleaning, bathrooms and so on. 26Mr Pantelis Pavlis, the plaintiff's son, gave evidence. His evidence was consistent with that of his sister and father. He said that his mother has changed from a happy outgoing person to one who is very unhappy, complaining of pain, and unable to do anything around the house. 27It is clear from the evidence that the plaintiff and her family have a strong work ethic, are hardworking, and are a cohesive and loving family. Their evidence was consistent, not shaken in cross-examination, and I had the impression that it was sincere.

Defendants' evidence 56Turning to the defendant's evidence, Mr Pretti of Pretti Real Estate gave evidence by statement and orally. His company was, at all material times, the managing agent for the shopping centre. It had had a long-standing arrangement with the owners of the centre, an arrangement that subsists to the present day. Amongst other things, Mr Pretti arranged for the cleaning, maintenance and repair of services at the premises between January 2009 and the end of December 2009 by a number of different people or companies, and Pretti arranged for payment of those services. Mr Pretti said that he regularly met with tenants every three to four months and discussed any concerns or issues they had. There were no complaints relating to the walkway. 57Relevantly, Pretti arranged and paid for the tiled surface at the exterior of the shopping centre to be painted with a paint that contained a non-slip additive and compound. This was done in April 2009, less than six months before the plaintiff's accident. 58Domaine Carpet and Pressure Ltd were paid by Pretti, from rents received by them, for the high pressure cleaning of the footpath in front of the shopping centre, and the painting and sealing of the relevant area. Their invoices were in evidence, as were evidence of payments made to them. 59Colourtone Stencil Systems Pty Ltd provided an invoice to Domaine dated 7 April 2009 for materials which included non-slip powder. They also supplied sealer lustre and anti-skid assistance powder. That invoice was dated 16 April 2009. I have no hesitation in accepting this evidence, that the exterior tiles were painted with a paint which included anti-skid assistance powder and a non-slip additive and that this was done in April 2009. 60Mr Pretti said that he had this work carried out in consultation with the owner and that the owner had not specified the paint except to insist that it be non-slip. I infer that the surface was painted with non-slip paint because both the owner and Pretti apprehended that there was a risk that the tiled surface was slippery when wet. 61Mr Trimboli, the director of the first defendant, did not give direct evidence. A statement made by him in 2007 was tendered. In it, he said his company maintained a centre management office but it was not always staffed and that a cleaner and caretaker were employed fulltime, at least in 2007, on site. He confirmed that Pretti had been the managing agent since 2003 and that they inspected it and advised him if repairs or maintenance were required. He said he was not aware of anyone having slipped on the tiled walkway. 62Indeed, critically, in my view, there was no evidence that anyone had slipped in that area, either before the plaintiff's accident or since. 63Expert evidence was given by Mr Neil Adams and Dr John Cooke. There was also in evidence a report from a Mr Strautins for the former second defendant. It was broadly consistent with Dr Cooke's report. Both experts conducted examinations of the external walkway and took measurements to ascertain slip resistance by reference to Australia/New Zealand Standard 3661. 64Six months before the accident, the relevant standards gave advice on the selection of a suitable class of pedestrian surface for an external colonnade such as the area under present consideration. A class W surface was recommended. A class W surface has a minimum BPN (which is British Pendulum Number) of 45 under wet conditions. A British Pendulum Number is obtained by testing a surface with a pendulum function test under wet conditions in accordance with the standard. The experts obtained slightly different results but both agreed that the results were less than the minimum required by the standard to meet class W. This means that the surface made a very high notional contribution to the risk of slipping when wet. However, both experts also acknowledged the actual risk of slipping for an individual depends on a number of other factors. 65I will quote from Mr Adams' report, because he puts it in straightforward terms: "Whilst it is not appropriate to infer that a surface is safe or unsafe solely on the basis of measured coefficients of friction because the likelihood of pedestrians experiencing slips on a surface is only partly dependant on the surface characteristics, it is possible, usually by undertaking objective measurements, to determine the relative contribution that a given surface might be expected to make to the overall risk that a slip might occur. The total risk that a slip might occur on any given surface is dependent both on the frictional characteristics of that particular surface as well as the range of contributing factors, including the presence of potential lubricants, for example water, footwear, pedestrian level of awareness, whether the pedestrian is turning or exerting other forces, aspects of gait, lighting and so on." 66Dr Cooke said that, "The painting and sealing with a paving paint with embodied grit particles [which was what was used] was a reasonable preventative measure." He was of the view that the defendant would have had a reasonable expectation that the surface would provide adequate slip resistance for some time. He and Mr Adams agreed that the surface should have been adequately slip-resistant when wet. Dr Cooke noted that grit wears away over time, resulting in a smoother and therefore less resistant surface and the defendant ought to have had it checked at regular intervals of about six months. Of course, it must be borne in mind that the plaintiff slipped on the surface within six months of the paint being applied. 67Mr Adams suggested in one part of his report that the walkway surface he examined immediately adjacent to the ATM (and further to the east) was consistent with having been painted relatively recently with a product that incorporated a non-slip additive, but that in an adjoining area, where the plaintiff actually slipped, the surface was smoother, consistent with having been painted some time ago with a product that incorporated a non-slip additive. He said that a "pedestrian surface having slip-resistance within the range would be very likely to be experienced as slippery when wet." He also thought it was relevant that the slip occurred near or on a sloping area of a walkway. He reviewed the various Australian standards in relevant legislation as the requirement of slip-resistant surfaces in public areas and concluded it was reasonable to expect the owners and occupiers of commercial premises, in which large numbers of the general public are likely to attend, to carry out thorough assessments of those premises in relation to potential hazards to the safe movement of people. 68Having identified that what he said was a very significant risk, he then set out the reasonable preventative measures that could have been implemented. He said: (i) all publicly accessible areas could have been provided with pedestrian surfaces that were adequately slip resistant in the presence of the types of contaminant likely to be present, including water; (ii) the walkway could have been surfaced with a material or treatment that achieved at least a W rating as recommended by the standards. He said any such treatment would need regular checking and re-treatment; (iii) absorbent mats of an appropriate size could have been deployed in periods of rain; (iv) anti-slip strips could have been applied to the sloping section of the walkway; (v) the owner or occupier could have arranged for the attendance of an additional worker during wet weather to enable the area to be regularly mopped; and (vi) the owner or the occupier could have displayed warning signs. 69The problem with these recommendations is that, firstly, they are couched in terms of the precautions that could have been undertaken. He does not anywhere say that they should have been undertaken, and he was not cross-examined. 70Secondly, they are all predicated on the defendant knowing or having a level of awareness that the area was slippery when wet. There was no evidence that it had any such knowledge. There had been no previous incidents. There was no evidence they had been told the area was slippery and this is despite Mr Pretti saying that he regularly met with all of the tenants every three or four months and asked them whether they had any problems or concerns. 71Equally, there is no criticism in the expert evidence about the paint or the additives used in the premises and there is no suggestion that Domaine's work was not workmanlike or defective in any way. 72In the discharge of reasonable care by the shopping centre owner, a number of things happened. The managing agent was asked to attend to the surface area of the walkway and he did attend to it. The sequence of events was authorised by the management agreement that was in evidence, and which permitted repairs to be arranged and supervised by the managing agent. The independent businesses that provided the services - that is Domaine and so on - were not impugned and, indeed, the materials supplied were purpose-designed for the works. 73Section 5B of the Civil Liability Act 2002 (NSW) requires the owner and occupier to act reasonably with respect of the risks of foreseeable injury. The reasonable act of a shopping centre owner does not include having the chemical knowledge to know whether a particular product renders a surface safe for pedestrian traffic. 74In the present case, the owner and occupier knew or, in my view, ought to have known that there was a risk that a tiled area might cause someone to slip, particularly when wet. In this case, the owner directed and the agent arranged for a commercial product to be applied which had the precise anti-slip qualities desired. 75The owner had a managing agent that he had known and trusted for a number of years. He instructed them to arrange for a non-slip product to be used and it was employed by apparently a reputable contractor. Ceteris paribus, a person who engages an independent contractor is not liable for its negligence: see Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19. 76The Civil Liability Act requires a consideration of what a reasonable person in the position of the defendants would have done or should have known and done. In my view, and I find, the risk of slipping on a wet tiled floor was reasonably foreseeable and should have been reasonably foreseeable both to the owner and managing agent. However, they did foresee the risk and they acted on it. As I have said, the owner instructed and the agent arranged the painting of the floor with a non-slip paint. Those measures were reasonable, in my view, and adequately, at least on the face it, addressed the risk of harm. 77Mr Adams suggested that there should also have been warning signs in the rain. But to what end? The plaintiff knew there was a risk of slipping in the wet and she said that she took care. Mr Adams said there should have been absorbent mats, but I accept Dr Cooke's comment that it would have been impracticable to put mats all around the shopping centre. Not only that, in my view, there is a risk that such mats, themselves, might become a hazard if they were displaced. 78Mr Adams said non-slip strips could have been placed. This aspect has troubled me a great deal since Mr Trimboli's statement mentions that non-slip strips had been placed at the rear of the premises. Indeed, it would not be onerous to place non-slip strips, but there was no evidence before this Court that strips could be stuck on a painted surface, and I note there was no evidence about the surface on which the strips at the rear of the premises had been placed. There was no evidence that it would have made a difference in the present case. 79I note that there is a slope adjacent to the ATM and strips may have made a difference but the area marked by the plaintiff as the point at which she slipped seems to have been before the slope starts. In any event, even if I am wrong about that, I reiterate there is no evidence that the presence of strips would have made a difference. 80Taking s 5D and E of the Civil Liability Act into account, in my view, the plaintiff has not proved that, had the owner taken appropriate action, she would not have slipped. The test is not whether the defendants might have made a material contribution to the risk; rather it is that but for the impugned act the accident would not have happened. The plaintiff cannot point to something that the owner or agent should have done that would have had the necessary effect of preventing her from falling: see Lesandu Blacktown Pty Ltd v Gonzalez [2013] NSWCA 8. 81The plaintiff said that the duty was to provide a reasonably safe area for persons to walk and this the defendants did not do because it was unsafe and slippery and they did not inspect it properly. It was said that had the area have been inspected, its slipperiness would have been discovered. 82There was a suggestion in Mr Adams' report that there was a difference in surface covering in between the area where the plaintiff slipped and the area that was painted, but this was not put to the experts and, as I said, they were not cross-examined. It was not raised in any other way other than in final address. In any event, I am not satisfied that that is, in fact, what Mr Adams actually said. To accept the analysis by the plaintiff that there was a difference in those two areas would require an examination and an acceptance of something that is said to be apparent in the photographs in Mr Adams' report. This is not an appropriate use of photographs. Photographs should be used to explain evidence, not become the evidence itself: see Blacktown City Council v Hocking [2008] NSWCA 144. 83The notion that the plaintiff slipped and, therefore, it must have been slippery is an example of hindsight reasoning and not appropriate: see Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18. 84Ultimately, I am not persuaded that the defendants are liable. 85There is nothing to indicate the defendants knew or believed anything other than that the floor was safe: they had used a proprietary product; there was no suggestion the product was not appropriate or poorly installed: (cf Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151); there were no complaints made to Pretti about slipperiness and no previous incidents. 86I reiterate my comment that the report of Mr Strautins, who was retained by the former second defendant, had a consistent opinion with that of Dr Cooke. 87Accordingly, there will be a verdict for the defendants. 88Required as I am to do so, I turn my attention to damages.