Ryland v QBE Insurance

Judgment 1The plaintiff brings an action for damages for personal injury sustained by her on 31 October 2009 when she slipped and fell in a shop. The formal and effective defendant is an insurance company, QBE Insurance (Australia) Ltd, which was substituted for the initial defendant pursuant to section 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946. 2The occupier of the premises in which the plaintiff fell was G Trad Pty Ltd as trustee for the GS Trading Trust trading as Table Eight Clearance. I may refer to the occupier as either "the occupier" or "Table Eight" or as "the defendant" unless it is clear that I am, in fact, referring to the formal defendant. I do so out of long usage. 3It is, perhaps, appropriate to recite a little bit of legal history as set out by Kirby P (as he then was) in Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 242: "Shopping malls are a feature of the automobile age. They did not exist at the time the common law duty of the occupier of premises to an invitee received its classic expression in Indermaur v Dames (1866) LR 1 CP 274 at 278. As common experience shows, such places are typically large collections of retail shops, big and small. They provided the modern equivalent of the covered market of earlier times. They have come to replace the departmental store of more recent memory. To them, customers flock to purchase a whole variety of wares. Parking facilities and plentiful public transport tend to be the prerequisites of such malls, which are typically, although not always, outside the central business district. It may be hard for some to imagine it, but such places frequently become a modern venue for public meeting, recreation, entertainment and the passing of time. Sometimes they have facilities for childminding and for the entertainment of children and young people. Because they are a relatively recent development in retailing, they tend to be modern, well lit, clean places with large areas to facilitate and encourage the public to move about and promenade in the mall." 4I hasten to add that the ancient form of the modern shopping mall was a Greek agora or a Roman forum. Since the dictum of Kirby P, which I have just cited, a development has been the appearance of factory outlet stores. As I understand it, they are places where an importer or manufacturer sells directly to the public without the intervention of a middleman, or retailer. Such places are thought to provide value for the ultimate consumer by cutting out the middleman. An even more recent development is the agglomeration of such factory outlets in factory outlet centres. 5On the corner of Homebush Bay Drive and Underwood Road at Homebush is a shopping mall known as "Direct Factory Outlets" which, according to exhibit A, is "Australia's premier factory outlet centre." The first page of exhibit A tells me that there are "over 90 brands and up to 70% off." There is a listing of a large number of shops within this centre. This centre, whilst providing direct factory outlets, is very much of the same mould as the original retail shopping malls described by Kirby P. As well as the shops, which are essentially the direct factory outlets, there are food courts and shops from which food and drink may be purchased, although the Direct Factory Outlets at Homebush would not appear to have any child-minding facilities as far as I can ascertain. 6One of the direct factory outlets at this shopping mall is a Table Eight store, which was occupied clearly by the defendant. The store sold directly to the public both men's and women's wear, and I infer from what was given in evidence also shoes and lingerie and sleepwear. 7The plaintiff's fall occurred on Saturday 31 October 2009. According to a contemporaneous document the fall occurred at about 4.40pm. The plaintiff's recollection was that the fall happened at "5ish" but the contemporaneous document is to be preferred as stating the approximate time of the fall. 8The Assistant Manager of the defendant on the day in question was Ms Intessar Dennaoui, who appears to have been known as "Tess." According to Ms Dennaoui she was in charge of the store on 31 October 2009. She was present throughout the day. According to her and a contemporaneous document, exhibit 2, there were eight other members of staff. They were Ms Nazarene Chami, who was rostered to work at the cash registers. The next member of staff was Ms Joanne Meligonitis, who was rostered to work in shoes. The next member of staff was Ms KerriAnne Fallon, who was also rostered to work at the cash registers. The next member of staff was Ms Sarah Slattery, who was rostered to work in "returns." The next member of staff was Ms Jessica Cortez, who was rostered to work at the fitting rooms and in the clearance area. The next member of staff was Ms Kathy Cheung, who was rostered to work in returns and ladies wear. The penultimate member of staff was LisaMarie Khouri, who was rostered to serve in men's wear. The final member of staff was Ms Laura Zapata, who was assigned to work in lingerie and sleepwear. Ms Zapata was on "trial" on that day, by which I infer is meant that she was being tested out to see if she could be made either a permanent member of staff, that is to test her suitability for working in this fashion outlet. All told there were nine members of staff. 9Ms Dennaoui herself oscillated between workstations, but worked mainly towards the front of the store in full-priced ladies fashion, and often at the cash registers. However, her practice was to move from one workstation to another to ensure that the staff were doing their assigned duties. 10That evidence having been given inchief by Ms Dennaoui, there was no crossexamination directed to her as to when each member of the staff was actually on duty. Clearly, members of staff would have been absent from time to time, taking a morning tea break or a luncheon break or a break to visit the amenities. However, the inference to be drawn from the evidence given by Ms Dennaoui is that the nine members of staff, including herself, worked throughout Saturday 31 October 2009. It was submitted on behalf of the plaintiff that the evidence was silent as to who, for example, might have been actually working at 4.40pm on that day. But no crossexamination was directed to Ms Dennaoui at all as to members of staff who may have stopped working prior to the scheduled closing time of 5pm. In those circumstances the only proper inference to draw is that the nine members of staff, including Ms Dennaoui, worked from the opening hour of 10 until the closing hour of 5. 11It is clear from the description which was given by Ms Dennaoui that a larger number of staff worked at the cash registers where Ms Chami and Ms Fallon were both rostered and where Ms Dennaoui herself was often stationed. Ms Dennaoui's own description of her job was this: "My role is just to float around the whole store and make sure everybody is doing their job and assist at registers." 12The cash registers are on a small podium, which is some nine metres from the front entrance of the store on the south-western wall of the store which divides Table Eight from Esprit. Exhibit B are two photographs of an aisle that runs through at least part of the store. A further view of that aisle is contained in the photograph which is exhibit 3. Exhibit 3 shows that aisle commencing at the boundary of the store and the common area of the mall. The aisle is covered with a vinyl surface, which has been simulated to appear to be wood. The rest of the interior of the store, other than the aisle to which I am now referring, and other aisles to which I may refer, is carpeted. 13Exhibit 3 shows an aisle going off to the left but according to Ms Dennaoui's evidence that leads merely to a display area behind a window at the front of the store. The aisle, which I shall refer to as the central aisle, runs part way through the store and then comes to a Tintersection. If one takes the lefthand turn at the T-intersection, one comes to the lingerie and sleepwear area. If one takes the righthand turn at the T-intersection, one arrives in the clearance area and the area where the fitting rooms are. 14If one walks straight ahead onto the carpeted area at the end of the T-intersection, one goes into menswear. The displays on each side of the central aisle shown in both exhibit B and exhibit 3 appear to display women's apparel which, according to Ms Dennaoui, was the full price women's apparel. The inference to be drawn from the fact that this aisle is covered with this vinyl surface is that it is a heavily worn area of the store, that is, one frequently and often used by customers to find their way through the store. 15On 31 October 2009 the plaintiff attended at the Direct Factory Outlets at Homebush in order to purchase gifts for her husband, whose birthday it was. She and her husband drove to the mall. They parked in a car park near the main entrance to the mall. The main entrance can be clearly discerned on exhibit A. On entering the mall they turned to the left and went to the Polo Ralph Lauren outlet, which is in the south western area of the mall on the inside of an Lshaped turning of the mall common area. The plaintiff then left the Polo Ralph Lauren store and went across the aisle into the south-western corner of the mall where there was an eating area and where there was a Michel's Patisserie, where she purchased takeaway coffee. She then returned to the Polo Ralph Lauren store where her husband was "getting his purchases." 16Whilst she was waiting for her husband to complete his transactions, she drank half of her coffee and she was then joined by her husband and they went to the Table Eight store. 17She went to the Table Eight store because she wanted to show to her husband a shirt which she had seen on the previous Thursday and which shirt she thought might be an appropriate gift for her husband on his birthday. She entered the store bearing her half full coffee cup. According to the plaintiff she did not seek to hide it from anyone. This evidence was then given: "Q. Were there any staff in the store at the entranceway? A. Yes. Having been a store manager myself, I noticed that they were at the counter. Q. Did any of the staff challenge you bringing the coffee into the shop? A. No. HIS HONOUR Q. I take it that the counter is at the front of the shop, is it? A. Front left as you walk in." 18One might be forgiven for thinking on that evidence that the counter where the cash registers were and where the staff had gathered was immediately at the entrance to the store, although the evidence of Ms Dennaoui clearly indicates that it was some nine metres inside the entrance to the store. 19The plaintiff then walked down the central aisle. She saw, as she was walking down the central aisle, a lady who was obstructing her path. The plaintiff said that she went to walk to her right through the carpeted area of the store. However, as the plaintiff sought to do that the other lady walked into that carpeted area so she "backtracked onto the pathway." When she did that she "slipped and fell." She went on to say, "I walked one step, two steps, slipped and fell." The plaintiff marked the place of her fall with a red X on photograph number 10, which is one of the two photographs contained in exhibit B. The other photograph numbered 3 shows the same aisle but was taken closer to the entrance to the store. 20The plaintiff said that she fell onto her "elbows and knees," although, as the evidence developed, it would appear that she initially fell onto her knees and then onto her elbows. The plaintiff's husband had been walking behind her. He came to her assistance and helped her to sit up on the floor. The plaintiff said later in her evidence that after initially falling onto her knees and then onto her elbows she ended up lying prone on the floor, presumably on the vinyl aisle. The plaintiff's husband pulled her back by her shoulders so that she ended up sitting on the floor. The plaintiff had herself emitted a cry when she fell, and her husband called out at least twice to attract the attention of those working in the store. It is clear from the evidence of Ms Dennaoui that as soon as she heard a cry she went to the source of the cry and arrived at the accident site. 21The plaintiff and her husband made much of what they thought was an inordinate delay between the plaintiff's falling and staff coming to her assistance, but I accept the evidence of Ms Dennaoui that as soon as she heard a cry she went to the assistance of the person who cried out. The plaintiff thought that the time between her crying out and assistance being provided by the staff "seemed like such an age, such a long time," but estimated that it was a few minutes. From the store as it was described by Ms Dennaoui and from the photographs, it is clear to me that not very long at all, and less than "three or four minutes" would be needed for Ms Dennaoui to get from the cash register area to the site of the plaintiff's fall. 22The plaintiff was asked whether after she had slipped she observed anything. She said that the first thing she observed was the "smell" of sweetness, and then she looked and saw a "puddle of milky substance about the size of a saucer" on the floor of the aisle, through which her shoe had made a mark. She was wearing high-heeled shoes at the time. Those shoes are exhibit 1. Both the plaintiff and Ms Dennaoui tell me that there was some of the milky substance on her right shoe. The plaintiff's said that the milky substance was "on the bottom of my shoe, it was over my toes." Ms Dennaoui said that the milky substance was on the bottom of the shoe, and it may be that what the plaintiff meant to convey was that the spillage was on the under surface of the toe area of her shoe rather than on the under surface of her heel. 23She described that the mark made by her shoe going through the puddle was about two to three inches wide. In answer to further questions she said that the milky substance was "whiteish" in colour. The plaintiff's husband described the spillage, for that can only be what this milky substance on the aisle was, as "saucer shaped" and thought it was about five inches or six inches wide. His description of the spillage was this, "it was a creamy consistency with a, with a halo of clear of fluid, with a footmark in it which was obviously it was like a scuff mark." It is common ground that, when members of the staff of the store arrived, the plaintiff's husband told members of the staff to clean up the spillage. According to the evidence of Ms Dennaoui, that was done by Ms Nazarene Chami. According to the evidence adduced from Mr Ryland no attempt had been made to clear up the spillage prior to his request that that be done but it is clear that he requested that of the staff as soon as they arrived. 24I interpolate at this stage that we live in an age of great technology. Most people, especially younger people, carry mobile phones. Many mobile phones act as cameras. No one had the presence of mind to take any photograph of this spillage prior to its being cleaned up. If such had been done, that would have been of some great utility to the Court. 25The evidence given by Ms Dennaoui of what she observed is this: "Q. Can you please describe what you saw? A. I saw like a milky sort of, could be from a baby's bottle substance on the floor. Q. Are you able to give a better description of how it looked? A. It would probably be about a circle, about a 20-cent piece or 50-cent piece, dribs and drabs of like a milky substance. It could have been milk from a baby's bottle. It could have been just milk. Q. So it was various drops? A. Yes, but in like a circle form. Q. Did you at any stage observe a puddle of milky substance the size of a saucer? A. Where? Q. Where she slipped? A. No. Q. Did you see a footmark or skid mark through the spillage? A. No, all I saw was like someone had slipped, just like the milk just went further out as when something has been gone through. Q. Spread? A. Spread. Q. But what you observed was collectively no more than a 20 cent or 50 cent diameter? A. At most, yes, that's correct." 26Six inches is approximately fifteen centimetres. Five inches is approximately 12.5 centimetres. A twenty-cent coin is just under three centimetres wide. A fifty-cent coin is slightly larger. The discrepancy is obviously quite large. On the one hand the plaintiff, by her counsel, asks me to accept the higher estimates given by the plaintiff and her husband and the defendant, by its counsel, asks me to accept the estimate of Ms Dennaoui. Estimates can be notoriously inaccurate. Estimates of time are notoriously inaccurate and estimates of distances can be notoriously inaccurate. The only finding I can possibly make is that the spillage was anywhere between three centimetres in diameter and some twelve and a half centimetres in diameter. 27Of importance, however, is the admission made by the plaintiff that had she been looking to see where she was going, she clearly would have seen the spillage. As the evidence was given, it became clear that her attention was distracted not only by the lady who was ahead of her but by her looking up to her right with her head laterally rotated to fortyfive degrees at a dress on display on the wall to the right of her. 28In other words the plaintiff was doubly distracted both by her looking at a garment on display and by the presence of this other lady in her pathway. That lady did not return to where the plaintiff fell after her fall. According to the plaintiff, she went off to the plaintiff's right and did not return. This lady was also seen by the plaintiff's husband who said that the lady was pushing a stroller and presumably there would have been present in the stroller an infant or toddler. 29The substance on which the plaintiff slipped, and I use those words advisedly, has been described as either milk or a milkshake or as baby formula. In the accident report form completed on the day, a contemporaneous document, Ms Dennaoui referred to it as "spilt milk or milkshake from a previous customer." The plaintiff and her husband merely refer to a white, creamy substance, to which must be added the plaintiff's observation that it smelt sweet. 30In her evidence, Ms Dennaoui volunteered that the substance could have been baby formula. Essentially it was suggested to Ms Dennaoui by counsel for the plaintiff that this was a recent invention because the speculation that it was baby formula was not contained in the contemporaneous accident report form which is exhibit 4. There is force to that submission. However Ms Dennaoui did not see the other lady and was unaware of this other lady pushing a stroller. It is not as if she tailored her evidence by stating that it may have been baby formula to tie in with the known presence of a lady pushing a stroller immediately prior to the plaintiff's fall. She was not challenged in that regard. 31It was submitted on behalf of the plaintiff that this may have been spilt ice cream, which would take time to melt and in melting might form the halo of a clear substance referred to in the evidence of Mr Ryland. That is just as much speculation as the speculation by Ms Dennaoui that it may have been baby formula. All I, as a tribunal of fact, can find is that it was a white milky substance, and that it was spilt in an area somewhere between three centimetres and twelve and a half centimetres in diameter. I can also find, as a tribunal of fact relying upon the admission made by the plaintiff, that this would have been visible to the plaintiff had she been observing where she was going. Based on that finding the spillage ought to have been obvious to any other person in the near vicinity of the spillage, which of course included the lady pushing the stroller. According to the plaintiff's evidence that lady must have been in a position at or very close to where the spillage was prior to that lady's moving off to her right, causing the plaintiff to veer back from her right to her left onto the aisle. 32There is no direct evidence as to how long the spillage had been on the aisle prior to the plaintiff's fall, but one can draw inferences and one can speculate. Under the classic formulation in Indermaur v Dames, referred to by Kirby P (as he then was), to which I earlier referred, the occupier of premises owed a duty to his or her invitee to prevent damage from any unusual trap or danger of which the occupier knew or ought to have known. However, since Australian Safeway Stores v Zaluzna (1987) 162 CLR 479, I do not need now to apply the old common law represented by Indermaur v Dames. Now I merely apply the principles enunciated in Donoghue v Stevenson [1932] AC 562 as applied in Australian Safeway Stores v Zaluzna and subsequent cases. 33Was there a system for the cleaning and inspection of floors of the Table Eight store at Homebush at the relevant time? The only evidence in that regard is that given by Ms Dennaoui. Every Monday, Wednesday and Friday morning there is a general cleaning of the store. The store opens at 10am, the cleaning starts at 9.45am and finishes around 10.15am. Ms Dennaoui said: "Yes, usually every single Monday, Wednesdays and Fridays we would vacuum and dust the racks and make sure everything is attended to in regards to cleanliness of the store, presentation, and if any spillages were seen they were wiped with a paper towel." 34I can, accordingly, find that on Friday 30 October 2009 the store was cleaned and checked between 9.45am and 10.15am, and that any spillages up until that time would have been cleaned away. Exhibit D is a quotation for the stripping and sealing of vinyl floors in the Table Eight store. The quotation refers to the stripping and sealing as requiring two "night workers" and "two coats of sealer." The quotation bears date 11 September 2009, and there was a tax invoice for the same job bearing date 21 October 2009. One can infer, therefore, that sometime after 11 September 2009 but not later than 21 October 2009, the vinyl floor of this aisle had been stripped and sealed. The significance of that is set out in the report of Mr Burn, which is exhibit E. 35In it he said: "... the process of stripping and sealing is used to rejuvenate the appearance of the vinyl preserving the material for longer life. Vinyl floors as they age dull and get stained with oils etc that routine cleaning does not always remove. Periodic stripping then resealing a vinyl surface removes accumulated buildup of contaminates marring the appearance of the vinyl turning it to the original gloss coloured surface initially installed; stripping and sealing a vinyl surface once every six months (or so) is more cost effective than removing and relaying the vinyl flooring simply due to age related wear and tear. Following a strip and reseal vinyl flooring is both cleaned and 'shiny', the degree and type of 'shine' depending on the particular polish used as some polishers are relatively slippery whilst others are relatively tacky, so have higher friction properties underfoot." 36The evidence is completely silent as to what particular polish was used when the vinyl floor was resurfaced in, more probably than not, October 2009. The only importance of exhibit D is that the vinyl floor had been recently stripped and sealed and any long-term contaminant would have been removed from the vinyl flooring. Since the stripping and sealing occurred only weeks before the plaintiff's fall one can infer that, inherently, there was no defect in the vinyl surface itself. 37The further evidence of Ms Dennaoui as to cleaning of the floor of the store is this: "Q. Other than the routine cleaning, which you've just told us about, Monday, Wednesdays and Fridays, was there any other system in place during the course of the day for identifying any spillages or contaminations on the floor? A. Whenever we come across any spillages or contamination, we wipe it immediately. If there's biscuits or something, we get the vacuum out and sweep it up. So, yes so whenever something is seen its attended to ASAP." 38In other words, there was an informal system where, when any spillage or contamination was identified, it was supposed to be cleaned up immediately by a member of staff. It would appear that there was no fulltime designated cleaner in this store. 39In crossexamination, Ms Dennaoui gave this evidence: "Q. ...You say that the system you had for detecting spillages was just if you happened to notice it as you were walking from one section to another? Would that be a fair way to describe your system of inspecting for spillages? A. Yes. Q. There was no organised system where you'd be walking along the aisle looking for spillages, was there? A. As in looking? Whatever we see we pick up and we... Q. But there was no procedure where you would specifically be on the lookout for spillages as you were walking along, was there? A. We would look on the floor so if we see a spillage we would do it. Q. Right. But at no stage did you have a system where you would specifically traverse the areas looking for spillages, was there? A. I don't understand what you're trying to say. Q. Well, it's a simple question. Your system of inspecting for any spillages was simply if you saw one as you were walking about you, you would deal with it? A. You would clean it up. Correct. Q. But there was no system where you would specifically inspect with a view to detecting spills, was there? A. As in walk on the floor and look if there's spillages, no. 40That concession by the witness led learned counsel for the plaintiff to submit that there was no system at all for inspecting floors and cleaning up any spillages. With the utmost respect, I am unable to agree. What learned counsel for the plaintiff was driving at was a formalised system of inspection and cleaning. There was a system of inspection and cleaning but it was quite informal. Members of the staff who walked around the store kept their eye out for things such as things falling on the floor and spillages and contaminants and if they noticed anything would rectify the problem. The inference to be drawn from what Ms Dennaoui said is that it was a duty not only of her but of each other member of the staff of the store. 41Earlier Ms Dennaoui had given this evidence, after the photograph which became exhibit 3 was put into evidence: "Q. Is that an area, do you remember whether on 31 October 2009, you spent any time walking up or down that pathway? A. Yes, I did walk up and down that. Q. What was the purpose of walking up and down that pathway? A. That's where I make sure the front of the store is looking presentable for the customers and that leads me to the registers where I assist. ... Q. How many times on that day, 31 October 2009, did you walk up and down that pathway from the beginning of your shift to 4.40pm? ... A. How much time did I walk from 10 o'clock until 4.40 I would have walked that at least 10 times in an hour, so about 60 plus times. Q. Was one of the matters that you were concerned with at the time that you walked up and down this pathway, whether there was any spillages or contaminants on the floor? A. Yes, it's a daily thing we look for. Q. Had you seen any spillages or contaminants on the floor, what would you have done? A. Wiped it. Q. Did you see any during that day? A. No." 42Later in her evidenceinchief Ms Dennaoui said that at the time that she heard the plaintiff cry out, and therefore at the time of the plaintiff's fall, she was at the cash registers. She said that when asked how long it had been between her being at the cash registers and being in the area where the accident happened Ms Dennaoui said, "About ten minutes, no more than that." She then reiterated that immediately before she went to the cash registers prior to the fall she had been in the area where the fall occurred. 43I have no reason not to accept the evidence of Ms Dennaoui. I thought she was an impressive witness. She has nothing to gain from the outcome of these proceedings. Indeed, if she were thought to have any animus, one would think that the animus was against the defendant. She had started working at Table Eight at Homebush in 2003. After the plaintiff's fall the business was known as "Barkins". Whether that represents merely a change of name or a change of owner the evidence does not enable me to ascertain. However, the plaintiff lost that employment on 11 November 2011 when the company went into liquidation or administration. It was some time before she obtained another job working as a retail sales manager at Birkenhead Point. From the way that Ms Dennaoui gave her evidence, she was quite "miffed", to use the vernacular, that she should lose her job because of her employer failing in business. 44I also accept that Ms Dennaoui was a diligent employee and that had she noticed any spillage she would have cleaned it up. I therefore can infer that this spillage occurred only in the period of no more than 10 minutes between when Ms Dennaoui left the area in question to the time of the plaintiff's fall. 45There are other items of evidence which point in the same direction. There is no evidence, for example, of this spill having been earlier reported to anybody at Table Eight or of there having been any earlier fall. Indeed, there is no evidence of there having been any earlier spillage or any earlier fall at any time between 31 October 2010 and when Ms Dennaoui started working there in 2003. 46The plaintiff herself had some familiarity with this store. At the commencement of crossexamination the plaintiff admitted that she had been to the store many times prior 31 October 2009. She said this: "Q. How many times would you have been to that shop before your fall on 31 October? A. I think every time that I went to DFO, because we were very close, like, I don't know, 8/10 minutes away, so HIS HONOUR: What's DFO? BERBERIAN: Direct Factory Outlet. WITNESS: I'd been there many times before. I had done Christmas for Christmas shopping and birthdays and, you know, such there. I had been to Table Eight probably every time that I'd gone. BERBERIAN Q. So it was a store you would regularly visit? A. Yeah. I liked their stuff, yes. Q. And so you are familiar with the overall setup of the store? A. Yes." 47In other words, the plaintiff herself gave no evidence of an earlier encounter at the defendant's premises of what might be called "poor housekeeping," nor was there any evidence adduced that, for example, on other occasions there had been spillages which had led to accidents. 48The other item of evidence which points in the direction of a recent spill is that a rack for the return section of the store was close by the site of the plaintiff's fall. Initially that was marked with a red cross on exhibit 3. The photograph of the aisle (which is what Ms Berberian referred to as the "pathway") was shown leading from the entrance from the mall. After that the same position of the rack for the return section was marked with blue crosses on each of the photographs, which is in exhibit B. The rack where the returns were collected was no more than two or three metres from where the plaintiff fell. The returns section was where Ms Sarah Slattery carried out part of her work. It was unclear to me whether the return section was where persons returned garments which they found to be inappropriate in order to obtain a refund, or where items that had been taken by customers to, for example, the fitting rooms and were there abandoned were placed back on the racks to be returned to the various parts of the store at some later time. 49The inference from the rack being where it was and from where the fitting rooms were is that the rack was probably designed to take garments that had been tried on by customers but not taken up by the customers, and which the staff needed to return from the fitting room area back to the racks on which the garments were normally displayed. In other words, this was an area not only which was traversed on many occasions by Ms Dennaoui, it was also an area which would have been traversed regularly by Sarah Slattery. 50The idea that this spillage had been present for hours, if not from the proceeding day, is just not consistent with the evidence that has been given in these proceedings. The plaintiff, as I said earlier, carried into the store her halfdrunk cup of coffee. The evidence, which was adduced by counsel for the plaintiff, implied that the staff of the store were quite prepared to admit customers bearing, for example, cups of coffee or cones of ice cream or other containers of liquids, or indeed foods which might be spilt at any part in the store. However, that is not how the evidence unfolded. In crossexamination this evidence was given: "Q. There was no prohibition on customers coming in with food or drinks, was there? A. No what, sorry? Q. Prohibition. A. Yes there was. Q. Was the prohibition enforced? A. There was a sticker up on the window. Q. A sticker up on the window? A. On the shop window, the two windows that we had when you first enter says no food or drinks allowed. Q. You know that this lady came in with a cup of coffee? A. Yes. Q. Why was there no attempt to challenge it? A. Are you aware of how many people walk into that store? It was a Saturday. You can't control and tell the people not to bring in stuff; that doesn't necessarily mean you won't come in with a cup of coffee. So you can't control every single customer that walks in that door with a cup of coffee. There is a clear sign written up there. Whether or not they obey it is a completely different thing. Q. Was there any direction to staff to tell people? A. Absolutely. Q. Was that direction enforced? A. Absolutely. Any time somebody holds any form of food or substance, we tell them that there is no food or drinks allowed in the store." 51The inference to be drawn from the evidence is that there was a sign on each side of the entrance to the shop saying that food and drink were not allowed to be taken within it. The plaintiff was not challenged by Ms Berberian as to whether she was aware of that prohibition or not. 52The plaintiff, as I've already indicated, was a frequent visitor to the store, and one might think that she would have observed any such sign at some time on one of her visits to the store. If she had have done, of course, that would have changed her position visàvis the defendant from invitee to trespasser but since the decision of the High Court of Australia in Australia Safeway Stores v Zaluzna, that distinction no longer has any validity. However an attempt was made by the defendant to make sure that contaminants could not be taken into what was obviously a clothing store. The Court would be not consistent with its duty if it did not take notice of what any jury exercising common sense would take notice of: that it is common for certain stores to prohibit those who enter them from either eating or drinking and, in the past, from smoking, although since recent legislation smoking is prohibited by statute. 53The plaintiff herself said that she had been a manager of a retail store. However she was not challenged as to whether she thought it appropriate or inappropriate to take food and beverages into a clothing shop. From the evidence of Ms Dennaoui it is clear that the first thing that the plaintiff said to Ms Dennaoui after Ms Dennaoui attended upon her after the fall is that she had not slipped in the spillage of her own coffee. In her fall, the plaintiff had spilt her coffee. That is made clear in the evidence of both the plaintiff and Ms Dennaoui but Ms Dennaoui was quite certain the plaintiff had not fallen in her own spillage because the spillage in which the plaintiff slipped was not coffee coloured as one would expect from coffee brought from Michel's Patisserie. 54The only significance, therefore, of the prohibition and attempt to enforce the prohibition of taking food and beverages into the store is to show that the plaintiff sought to discharge its duty of care to customers in trying to ensure that food and drink would not be taken into the store and therefore minimise the risk of any accident occurring because of a contamination of the floor by food or drink. 55The plaintiff has referred me to a number of authorities on the question of the extent of the duty of care of the defendant. I need to refer to a number of these decisions. The first is Hampton Court Ltd v Crooks (1957) 97 CLR 367. The appellant in that case owned licensed premises known as the Hampton Court Hotel. On Saturday 6 December 1952, Ms Crooks went to that hotel in order to have dinner with a female friend and two male friends. Those were the days of 6 o'clock closing and the licensed hotel had closed at 6pm. Between 7pm and 8pm Ms Crooks and her companions ate dinner. At about 8pm Ms Crooks went to the ladies retiring room to visit the lavatory where she slipped and fell. A civil jury found for the plaintiff. The Full Court of Supreme Court did not overturn the jury's verdict on the basis that the defendant had not applied to the trial judge for a verdict by direction. On appeal the High Court of Australia overturned the verdict of the jury and in essence directed that a verdict be entered for the defendant. Dixon CJ said this: "I have had the advantage of reading the judgment prepared by McTiernan, Fullagar, Kitto and Taylor JJ and agree in it subject to two observations which I desire to make. The first is that on the assumption, which I accept, that the jury might reasonably find the cause of the plaintiff's injuries to be the presence on the floor of a wet substance of a greasy nature covering an area of eighteen inches by two or three inches, I do not think that proof of this fact was enough to enable the jury to infer negligence on the part of the defendant: proof was necessary of some additional circumstances tending, for example, to raise a probability of its having been there long enough to be seen if reasonable supervision were practiced, or to show that so many people were likely to use the lavatory in the preceding hour that close control was called for, and that the dropping of some such substance was common or inherently likely to occur. But very little might have been enough. For the case is one where the facts can hardly be within the knowledge of the plaintiff and, at all events, so far as concerns the care and control of the premises and the precautions taken, must be peculiarly within the knowledge of the defendant: cf per Isaacs J, Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 at p 178 and the cases there cited. But a plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge the defendant: all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it, in accordance with the often repeated observation of Lord Mansfield in Blatch v Archer (1774) 98 ER 969 at p 970 ... But notwithstanding this principle, I think that there is no evidence adduced by the plaintiff which will suffice to support the jury's verdict." The second point offered by his Honour is not one that is necessary for me to refer to. 56The judgment of the majority pointed out that there was no reason for deciding that conditions at 8pm in any way resembled conditions before 6pm and that the same degree of supervision of the lavatories was necessary or, in fact, exercised in the lady's lavatory at hours after the licensed premises shut. Furthermore there was no evidence adduced in that case that the lady's retiring room was in constant or frequent use such that the exercise of reasonable care required the continuous attendance of an employee in the retiring room to ensure the safety of those who used it. In essence the plaintiff did not succeed because the plaintiff could not prove a want of reasonable care. 57In Brady v Girvan Bros Pty Ltd 7 NSWLR 241, Priestly JA, who agreed with McHugh JA, said this at p 249: "The duty arises from the following factors: the public nature of the premises; the defendant's interest in encouraging the greatest possible number of people to come there; the likelihood of spillage accidents in the common public part of the premises unless very carefully guarded against and the general expectation, which in my judgment exists in the community that persons in control of areas such as that where the plaintiff slipped will guard very carefully against such dangers. The duty upon the persons in charge to which the foregoing factors gave rise is to have such a system of watching for the happening of (inter alia) spillages as will enable them to move promptly after their occurrence." 58The facts of the case, however, need to be considered. Girvan Bros Pty Ltd traded as the "Minto Mall". That was a large two-storey building. The ground floor was occupied by banks, offices and doctors, and an escalator led to the second floor. That floor contained at least fourteen shops. They included two supermarkets and a number of shops selling food and drink. One of the vendors of food and drink was a Mr Whippy ice-cream shop. Between 2.30pm and 3pm on 11 January 1984 the plaintiff went to a Kmart store on the second floor for the purpose of buying wool. She was in that store for about 5 to 10 minutes. She left the store at the same point at where she had entered it. A few yards outside the store she slipped and fell on one of several patches of green jelly. Although the jelly contained some solid particles, it was melting. The Mr Whippy ice-cream shop sold jelly in small cups. That shop and the Kmart store, to which the plaintiff had access, faced each other across a common area. According to the facts as recited by McHugh JA, the first floor of the premises was divided into a capital Y shape; Kmart was in one corner, Mr Whippy was in the other corner; the stores were about thirty feet apart. The general cleanliness of the shopping area was of a very high order. Apart from the jelly patches the plaintiff did not observe any other deleterious material on the floor. However, on other occasions the premises were known to have been dirty. 59The fall accordingly was in the common area of a shopping mall between various stores, and the source of the spilt jelly could be ascribed to goods sold by the Mr Whippy ice-cream shop. At 255 McHugh JA said: "When many people are using public premises, reasonable care may require a system of almost constant inspection and cleaning up of spillages and other rubbish unless the risk of injury is slight. In that class of case an inference of negligence may arise from proof of the occurrence, even though the plaintiff is unable to prove how long the spillage existed, because the occurrence gives rise to the inference that a failure to provide or maintain the required system caused the injury to the plaintiff. But when the risk of injury is slight or few people use the premises less care is required; reasonable care may require no more than that the premises be inspected and cleaned at regular intervals. In that class of case failure to prove the time between spillage and accident may be fatal; for the occurrence itself raises no inference that the accident was caused by the failure to have a proper system of inspection and cleaning. The accident may have occurred despite the existence of the appropriate system." 60In the following paragraph of his reasons, McHugh JA pointed out that the presence of the Mr Whippy ice-cream shop and other shops made it inherently likely that from time to time slippery substances and rubbish will be thrown or left on "the common ways". His Honour pointed out that the risk of injury was no doubt increased by reason of the school holidays and the presence of children buying ice creams and similar products. His Honour pointed out that in the centre of the walkway was a rotunda where people might sit and eat or drink. These are now commonly referred to as "food courts". 61His Honour pointed out that the risk of injury to users of the Minto Mall from rubbish and slippery substances was both constant and real. His Honour also pointed out that many people could be expected to use the premises. Therefore, in his Honour's judgment reasonable care required a system of continuous inspection and cleaning to eliminate accidents as far as was reasonably possible. His Honour then pointed out that there was not any full-time cleaner employed at the Minto Mall. His Honour felt that given the facts of the case, reasonable care required the employment of a cleaner throughout the shopping day. His Honour also concluded that the defendant did not have a regular system of inspection in force at the time of the plaintiff's accident. His Honour went on to say this: "The manager's statement that he 'would send someone to clean it up' infers that the defendant had no person whose job required him to inspect and clean the premises at that time." 62These days when one goes to any shopping mall, one could expect there to be a band of cleaners working together in the mall and being on call for if any spillage is reported or otherwise detected. These bands of cleaners often have set patterns where they are required to pass certain points in the mall at certain times, for example every quarter hour or half hour and if the area involves a food court much more frequently, especially at meal times. 63However, the Table Eight outlet at Homebush was not a mall but was in a mall. It was not a common area of the mall but one of the "specialty shops". 64The next decision chronologically to which I was referred by counsel for the plaintiff was Kocis v SE Dickens Pty Ltd [1998] 3 VR 408. The facts of that case are contained at the commencement of the judgment of Phillips JA at p 410: "There is in the Corio Village near Geelong a 'Coles New World Supermarket,' which at the relevant time was being operated by the respondent. On 9 January 1986 the appellant, one Jelina Kocis was shopping there and, when pushing a trolley along one of the aisles, she stopped to chat for about five minutes. She then moved a few metres away, stepped over to the shelves and reached up for a washing machine additive. As she turned around to place the item in her trolley, she slipped and fell and, when she tried to get up, she slipped and fell again. She then saw that she had slipped on a pool of liquid. It was a small pool of Pine-O-Clean, a brown coloured disinfectant." 65In that case the trial judge had directed the jury to turn a verdict in favour of the defendant. At p 413 his Honour said this: "In the end I think it was common ground that the likely frequency of spillages in this supermarket (which according to Mrs McLoughlin and 16 cash registers) was such as to justify, and indeed require, the system of periodic inspection and cleaning at least every 30 minutes throughout the day. That was the basis upon which the appeal was argued and as appellant's counsel was content with that, I am content to proceed upon that footing without expressing any view upon whether a jury might find on the evidence that something more was in fact required of the respondent if it was to discharge fully the duty of care imposed upon it." 66On p 414 his Honour pointed out that the evidence was not that the spillage had been on the floor for only five minutes or thereabouts, but that it had been there for at least that period of time. His Honour went on to say this: "Although we were not directed to any evidence on the point, it seemed to be the tacit assumption of both sides on the appeal that the floor of the supermarket store had been cleaned overnight so that the liquid on which the plaintiff slipped must have fallen to the floor at some stage during the one and a half hours, which it was open to the jury to find, had elapsed between the opening of the store and the plaintiff's accident. Beyond that the evidence was silent in the sense that it did not establish at what particular point within that one and a half hours the liquid had been spilt." 67On p 415 his Honour said this: "I take first the plaintiff's task of establishing a relevant duty of care in the defendant. It may be accepted as a starting point, but if a person enters upon the premises of another and slips on something on the floor, that does not in itself betoken, negligence. But if it is a customer who has fallen on the defendant's supermarket after slipping on something that has been spilled on the floor in one of the aisles around the shelves, and in an area where such spillages are to be expected from time to time during the day, the plaintiff will ordinarily be able to rely upon on the obligation imposed on the defendant to take reasonable care for the safety of its customers, and to that end to have in place some sort of system for cleaning the floor from time to time in order to overcome the risks of slipping created by such spillages. The standard of care, and therefore the actual steps that will be sufficient to discharge that obligation, will however depend upon the particular circumstances of the case. In essence, it is the likelihood of slippery substances falling from time to time to the floor of the supermarket in areas where customers are regularly passing and repassing that serves to attract the defendantoperator the obligation, in taking reasonable measures for the safety of its customers, to look to the cleaning of the floors, to protect against the risk otherwise arising. In the absence of such likelihood, there may be no obligation to guard against the risk; and that, I think, is the significance of for present purposes of Hampton Court and Dulhunty it may be Williamson also." 68His Honour's reference to Hampton Court is clear reference to Hampton Court v Cooks, which I have cited above, the reference to Dulhunty is to Dulhunty v JB Young Ltd (1975) 50 ALJR 150, and Williamson is to Williamson v GJ Coles & Co Ltd [1985] VR 59. 69Eventually, the Victorian Court of Appeal ordered a new trial. However, the factual matrix must be considered. That case involved a supermarket which was large and in which one would expect to find on the shelves many items that were liquids or creams, not only in the cleaning aisle but also in, for example, areas from which beverages are sold and cabinets in which, for example, milk and cream are displayed, many different items which can cause a hazard if dropped to the floor. There is nothing inherently hazardous for a pedestrian in what was sold in Table Eight. 70I now turn to Strong v Woolworths Ltd [2012] HCA 5. That involved the Centro Taree Shopping Centre at Taree. That is a shopping mall. There was a sidewalk sales area outside the entrance to the Big W store. The plaintiff in that case trod on an abandoned hot chip and slipped and fell and sustained injury. At [3] the majority (French CJ, Gummow, Crennan and Bell JJ) said: "It was not in question that Woolworths owed a duty to take reasonable care for the safety of persons coming into the sidewalk sales area. Nor was it in question that, on the day of the appellant's fall, Woolworths did not have any system in place for the periodic inspection and cleaning the sidewalk sales area. The Court of Appeal held that the appellant had failed to prove that Woolworths' negligence was a cause of her injury." At [4] the majority said this: "... the appeal concerns the familiar difficulty in 'slipping cases' of establishing a causal connection between the absence of an adequate cleaning system and the plaintiff's injury when it is not known when the slippery substance was deposited. In issue is the correctness of the Court of Appeal's conclusion that it was not open to infer that the chip had been on the ground long enough for it to have been detected and removed by the operation of an adequate cleaning system." 71Their Honours pointed out that the Court of Appeal did not err in that it had applied s 5D of the Civil Liability Act 2002. At [29] the majority said this: "The Court of Appeal correctly held that causation is to be determined by reference to the statutory test. Contrary to the appellant's submission, the Court of Appeal said nothing about how the application of that test might lead to an outcome that differed from the outcome that would have been reached by the application of the common law. The causation issue presented by the appellant's claim has nothing to do with concepts of material contribution to harm, material increase in risk of harm, or any of the difficulties discussed by the text writers in the context of the limitation of a 'but for' analysis of factual causation." 72Accordingly, it appears to me that the question for determination under s 5D of the Civil Liability Act 2002 is the same determination that needs to be made at common law. At [33] the majority pointed out that the sidewalk sales area was not inspected in the four and a half hours between the time when the area was set up for the day's trading and the time of the appellant's fall. There was no dispute that had the area been inspected, the chip would have been detected and removed. 73At [34] the majority said this: "Woolworths' submission that it was necessary for the appellant to point to some evidence permitting an inference to be drawn concerning when the chip was deposited must be rejected. It was incumbent on the appellant to prove that it was more probable than not that Woolworths' negligence was a necessary condition of her fall, but this onus could be discharged by consideration of the probabilities in circumstances in which the evidence did not establish when the chip was deposited. The point was illustrated by Hayne JA (as he then was) in Kocis v SE Dickens Pty Ltd. His Honour posited a case in which reasonable care required the occupier of premises to carry out inspections at hourly intervals. Assume that no inspection is made on the day the plaintiff slips on a spill eight hours after the premises opened for trading. If there is no basis for concluding that the spill is likely to have occurred at some particular time rather than any other time, the probability is that the spill occurred in the first seven hours of trading and not in the hour preceding the plaintiff's fall. As Hayne JA observed, a plaintiff must prove his or her case on the balance of probabilities and it is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open. The determination of the question turns on consideration of the probabilities." At [38] the majority said this: "Reasonable care required inspection and removal of slipping hazards at intervals not greater than 20 minutes in the sidewalk sales area, which was adjacent to the food court. The evidence did not permit a finding of when, in the interval between 8am and 12.30pm, the chip came to be deposited in that area. In these circumstances, it was an error for the Court of Appeal to hold that it could not be concluded that the chip had been on the ground for long enough for it to be detected and removed by the operation of a reasonable cleaning system. The probabilities favoured the conclusion that the chip was deposited in the longer period between 8.00am and 12.10pm and not the shorter period between 12.10pm and the time of the fall." 74Earlier, the majority of the High Court pointed out that the Court of Appeal had determined that the chip was probably brought by somebody at lunchtime for his or her lunch and that the chip would have been deposited by somebody who purchased it at 12 noon or shortly thereafter and therefore that the chip had been spilled between roughly 12.10pm and 12.30pm. May I just add, anecdotally, that in the judges' lift this morning at 11.15am there was a distinct smell of hot chips, which indicates that the High Court's fact finding venture was probably more accurate than the Court of Appeal's fact finding venture. 75The other authority to which I have been referred by counsel for the plaintiff is Rose v Abbey Orchard Property Investments Pty Ltd (1987) Aust Torts Reports 80121. However, that case involved a car park, where a plaintiff had fallen on oil spilt on the car park floor. The system of inspection had stopped at about 2.30pm and the fall had occurred about 3pm and the Court held that the defendant had been negligent in not keeping the system of inspection that obtained until 2.30pm going for longer, during which period of time the car park was open. 76The other decision to which I was referred by counsel for the plaintiff was Ainger v Coffs Harbour to City Council (No 2) [2007] NSWCA 212, which concerns only an allowance for contributory negligence in another "trip and fall case" rather than a "slip and fall case." 77Here, there is no dispute that the defendant owed a duty to take reasonable care for the safety of persons going into its store at the Direct Factory Outlet Mall at Homebush. There is a dispute about the adequacy of the system in place in that store for its periodic inspection and cleaning. The nature of the store must be borne in mind. There is nothing to distinguish this store from any other Direct Factory Outlet store selling clothing to members of the public, nor is there any distinction between this store and any other retail shop in which clothes are sold directly to members of the public. This store did not contain any amenities, that is any lavatories or washrooms. This store did not sell food or beverages. This store did not offer food or beverages to those who entered it. This store sought to prevent persons carrying food and beverages entering into it. However, no system is fool proof, and members of the public often ignore requests made of them to comply with rules. 78It was foreseeable that some errant shopper might enter the premises carrying a beverage or, and indeed it is foreseeable, that a mother might push a pram or stroller into the store which contains an infant or toddler who might spill milk on the floor. Spillages are therefore foreseeable. However, the frequency of spillages in this store and stores of this nature has not been established in the evidence, nor is there any direct evidence of what a reasonable system would be for the inspection and cleaning of the premises. 79The report of Mr Ian Burn of 27 October 2011 has been admitted in part. In 5.0, which is headed "Preventability", Mr Burn says this: "This injury could have been prevented as follows: (b) by implementing a system of inspection and cleaning that removed contamination as soon as it occurred; ... (d) placing warning signs to warn customers of the risk of falling until such times as spills are cleaned and the floors returned to a safe state." 80Of course, the second of those two ways of preventing this fall accepts that the defendant knew of the spillage and therefore could place a warning sign over it or beside it or near it. Any slip and fall can be prevented by implementing a system of inspection and cleaning that removes contamination as soon as it occurs. However, the cost of such a system might be intolerable. Is a cleaner to accompany every person who enters the shop? Is a cleaner to be present in every section of the shop so that he or she can attend immediately to any spillage that he or she might see? The occupier of premises must take reasonable care. The authorities which I have cited, leaving aside Hampton Court Ltd v Crooks, often indicate a system of inspection of cleaning every hour or half hour or twenty minutes for premises which carry a much greater risk of slipping and falling such as the common areas of shopping malls and supermarkets. 81As I have pointed out, even then, in shopping malls some areas are more hazardous than others, for example, food courts and require an even more intensive supervision and cleaning regime than other parts of a mall. However, there is no evidence before me as to what system of inspection and cleaning this occupier ought to have adopted. For all I know it is the same system of inspection and cleaning adopted by every other retailer of men's and women's clothing. The system may have been informal, but there is no evidence that this informal system of inspection and cleaning had failed in the past. 82On the evidence before me, the assistant manager, who in fact was the lady in charge at the time, Ms Dennaoui, had been in the area where the spillage occurred some ten minutes earlier, and I accept that if the spillage had then been present she would have detected it. True it is that the plaintiff does not have to prove when the spillage occurred, but the plaintiff must prove some item of negligence. If, for example, the area had last been visited by a member of the defendant's staff hours and hours before, one might draw an inference that there was an inadequate system of inspection and cleaning. However, all the evidence tells me is that some ten minutes previously, a member of staff, Ms Dennaoui, had been in the area and detected no spillage when part of her traversing the area was to inspect for spillages, amongst other duties. 83Any travelling can have multiple purposes, as many areas of the law make clear. She might be travelling from one worksite to another in order to supervise the staff, but in the process of making that journey can carry out an alternative task of inspecting the floor for spillages and, indeed, other areas of the store for their "presentation," and it would appear from certain parts of Mr Dennaoui's evidence that she was equally as concerned about clothing being left on the floor by those who may have knocked it from a shelf, or display rack, or the like, or where it was not properly returned to a hanger such that it did not stay on the hanger on the rack but fell to the floor. 84I am not persuaded on the balance of probabilities that the defendant has breached its duty of care. Really, there is no evidence of negligence. I know of a system of work, a system of inspection and cleaning, informal though it was. There is no evidence that this system was in any way defective or contrary to community and retail expectations. All I can say is that the evidence establishes that the plaintiff slipped and fell on a substance that had been spilt on the vinyl flooring of the aisle within 10 minutes prior to the plaintiff's falling. In my view, the defendant is therefore entitled to verdict and judgment in its favour. 85Lest I be wrong in that, I am required to make further findings which might ultimately assist in the disposal of the matter should it go further. The defendant has pleaded that the plaintiff was guilty of contributory negligence. The plaintiff relies upon Ainger v Coffs Harbour City Council (No 2) [2007] NSWCA 212 on the question of contributory negligence. However the authority cited to me appears to deal mainly with costs. What I assume the plaintiff meant to refer me to was the original decision Ainger v Coffs Harbour City Council [2005] NSWCA 424. 86Here, the plaintiff was doubly distracted. She was distracted by the lady ahead of her, who blocked her path. She then made off to the right of the vinyl covered isle and as she was doing so she looked up to her right to look at a dress displayed on high. She then noticed that the lady who had previously been blocking her path had, in fact, headed off the aisle onto the carpet and was therefore again heading in the plaintiff's direction. The plaintiff then switched to the left, back onto the aisle, where she fell. 87It is quite possible, and indeed probable, that the plaintiff may not have seen the spillage initially because her view of it was obscured by the other woman. However, when one's view of the way ahead is obscured by an obstacle, one must always bear in mind that that obstacle might conceal a hazard. When the obstacle in the form of the other woman moved off the aisle, the plaintiff ought to have scanned the aisle before returning to it to ensure that the other woman had not been covering up or masking or obscuring some hazard on the aisle. The plaintiff freely admitted that if she had been watching where she was going, she would have seen this spillage. 88In the circumstances the defendant has made out its plea of contributory negligence in that it has established the plaintiff failed to keep any proper look out and that she had failed to watch where she was walking at the relevant time. That finding, assuming the plaintiff had succeeded in establishing negligence would call for an apportionment of liability. Doing the best I can, I would have attributed thirty percent to the contributory negligence of the plaintiff. 89The remaining issue for me is to assess damages. The plaintiff had, in July 2009, suffered a fracture of her right olecranon. It had been struck by a glass door at her own home which was closing on her. It struck her hard. She noticed symptoms in her right elbow at the time but they did not incapacitate her nor require any medical treatment. 90In the fall on 31 October 2009, the plaintiff suffered a fracture through the left olecranon extending to the articular surface of the elbow joint with four millimetres of displacement. She also either aggravated or exacerbated the preexisting fracture of the right olecranon. She also sustained some, I would infer, soft tissue injury to her left knee. She was taken by ambulance to the Concord Repatriation General Hospital. She appears to have arrived at the emergency department at 5.52pm and was seen by the triage nurse at 6pm. 91The triage nurse noted that the plaintiff's left elbow was deformed and that her right elbow was swollen, and that there was a laceration on the left knee which had been covered with a bandage, presumably by either the first aid attendant, the "security guard" called by the defendant's staff to assist the plaintiff after the fall, or by the ambulance officers. I should point out that the evidence suggests that the security guard / first aid man was in fact an employee or contracted to the owner of the Mall rather than that he was an employee or contracted to Table Eight. 92There was some dispute as to whether the plaintiff injured her right elbow at the time of this fall, but I am confident that, from the nurse's notes of a swelling of her right elbow and from photographs taken of the plaintiff in the hospital on that day, she did sustain an injury to her right elbow, which might be seen as the exacerbation or aggravation of a preexisting right olecranon fracture. An Xray of the left knee taken on the day of the fall revealed no abnormality. The plaintiff was sent home from the emergency department at 11.18pm. 93She was told to attend the fracture clinic on 5 November but in fact attended on 6 November 2009. Xrays taken on that day showed the fracture of the right olecranon, there being a relatively marked separation of an olecranon fragment. From that radiological investigation it appeared to the treating doctor that the fracture of the right olecranon was "old". 94On 6 November the plaintiff's left wrist was found to be tender, and it was also Xrayed and the only abnormality detected was that the bones of the plaintiff's left hand were osteopenic. Osteopenia is a less advanced stage of decalcification; a more advanced stage of decalcification is known as osteoporosis. 95Arrangements were made for the plaintiff to undergo surgery on her left elbow. For that purpose she was admitted to the Concord Repatriation General Hospital on 10 November 2009, and discharged on 12 November 2009. The records indicate that this surgery was practiced by Dr Kaplan on behalf of Dr Trantalis, an orthopaedic surgeon. The procedure carried out was an open reduction and internal fixation of the olecranon fracture. The plaintiff was discharged in a cast. At the time that the plaintiff was admitted to the hospital, a questionnaire was filled out by a nurse who, obviously, asked the plaintiff a number of questions. These questions were asked and the following answers given: "Does the patient require eyeglasses continually? Yes. Does the patient report blurred vision? Yes. Does the patient have glaucoma, cataracts or macular degeneration? Yes." 96The plaintiff was crossexamined about wearing spectacles at the time of the fall. She was unable to remember whether she was wearing spectacles or not, and she could not recall having to collect spectacles which had fallen from her onto the floor of the defendant's premises. However, the questionnaire completed on 11 October 2009 clearly suggests that the plaintiff needed to wear spectacles full time. She wore spectacles in the witness box, although she had to change them when asked to read documents. The evidence does not allow me to say whether the plaintiff was wearing spectacles at the time of the fall, but no evidence has been adduced to show how her failing to wear spectacles may have contributed to the fall. However, the plaintiff wanted me to accept that she did not need to wear eyeglasses continually, which is an assertion that is inconsistent with what she told the nurse at the hospital on 11 October 2009. 97An Xray was taken on 25 November 2009 through a plaster cast. That Xray reported an improvement in the degree of displacement of the plaintiff's left olecranon. The plaintiff was seen by Dr Trantalis on 16 December 2009. That was some five and a half weeks after surgery. By that stage, the range of movement of the plaintiff's left elbow was between 5 degrees and 110 degrees, with the range of movements of the right elbow between 10 degrees and 110 degrees. The doctor noted generalised tenderness over both elbows. The doctor noted that the Xray taken on 25 November showed the fracture in an acceptable position. 98The plaintiff told the doctor that she wanted an operation on her right elbow. She was advised to continue physiotherapy and await a further review by Dr Trantalis. On 18 December 2009, two days later, the plaintiff was seen by doctors at the Department of Endocrinology and Metabolism, and, essentially, a diagnosis of osteoporosis was made. The plaintiff gave a family history of osteoporosis. Treatment was prescribed for that condition. Xrays were taken at the time of the patient's thoracic and lumbar spines and also of each of the hips. There was found to be mild wedging of multiple thoracic vertebral bodies, with a loss of height of up to eighteen percent. There was also moderate osteophytosis and disc space narrowing. There were also degenerative changes in the plaintiff's lumbar spine, with a loss of height of the L3 vertebra of some twentytwo percent. Xrays of the hip gave readings consistent with either osteopenia or osteoporosis. 99A CT scan of the plaintiff's right elbow was performed on 7 January 2010. The records before me are unclear as to why that was performed at that time. It confirms nonunion of an earlier right olecranon fracture. The plaintiff was then admitted to Concord Repatriation General Hospital on 5 February 2010 for surgery on the right elbow. She was discharged on 8 February 2010. Again there was open reduction in internal fixation and grafting with bone taken from the iliac crest. To effect the fusion, a plate was fixed to the olecranon with six screws. That plate was not removed until 29 July 2011. 100Xray of the right elbow performed on 17 February 2010 showed the right elbow joint to be in anatomical alignment. There was still then present a moderate effusion of the joint. The plaintiff was seen again by Dr Huang, registrar from Dr Trantalis on 24 March 2010. The final two paragraphs of Dr Huang's report following upon that examination are these: "She has had minimal issues since the surgery and today her wound was otherwise unremarkable except there is a half millimetre scab noted on the distal end of the wound, which was not erythematous or suspicious. She was able to achieve a range of motion of 15100 degrees in her right elbow. Patient was reviewed in conjunction with Dr Trantalis, orthopaedic consultant, today. She is progressing well and we would like to follow up with her in six weeks time with another progress Xray. She is for full range of motion but no active loading of her right arm at this stage. She will return to us in the interim should there be any further concerns." 101Xrays taken on the same day show "minimal if any callus" formation present at the site of the fracture. However there is no mention at that time of any joint effusion. Further Xray performed on 28 April showed a satisfactory anatomical alignment and no elbow joint effusion. By 21 July 2010, Dr Trantalis noted that the plaintiff had a range of motion of between five degrees and 130 degrees in her right elbow and between five degrees and 150 degrees in her left elbow. An Xray taken of the right elbow at that time showed that the fracture was barely visible. 102Essentially the plaintiff says she made a good recovery from surgery at least six weeks after the second operative procedure. That is within six weeks of the procedure carried out on 5 February 2010. The inference I draw is that essentially the plaintiff got to her present state by 24 March 2010. 103The plaintiff complains essentially of ongoing weakness in both her upper limbs, in particular anything requiring pulling or pushing. The plaintiff was seen by Dr Neil Berry, a general surgeon, on 18 June 2010. He reported the plaintiff's elbow fractures had been adequately reduced and stabilised. He diagnosed a thirty percent loss of sufficient use of the plaintiffs right arm at or above the elbow, and twenty percent loss of sufficient use of her left arm at or above the elbow, but, of course, the plaintiff has no entitlement to claim compensation under the Workers Compensation Act 1987. Dr Berry does not tell me in essence what is wrong with the plaintiff's elbows on an ongoing basis. 104The defendant has also qualified a doctor, Dr Antony Smith, an orthopaedic surgeon, who saw her on 18 November 2010. At that time Dr Smith thought the plaintiff had lost ten degrees of extension of each elbow, and on the right side there was a five degrees loss of flexion, but supination and pronation of each elbow was normal. As far as Dr Smith was concerned the plaintiff had made a full recovery from the fractures of the elbows. He did not think there was any evidence of any arthritic change, and nor was there likely to be. The plaintiff may have some ongoing problems with osteoporosis, but clearly, in Dr Smith's view, that was not caused by this accident, that was part of an ongoing degenerative process of the plaintiff's skeletal system. 105It is somewhat difficult to see what is exactly continuing to affect the plaintiff's elbows. However, accepting as I do that this accident gave the need for surgery to each of the plaintiff's olecrana, I can accept that there is some ongoing limitation of movement, and some ongoing weakness. 106The plaintiff has submitted that her damages for noneconomic loss should be thirty percent of a most extreme case. In her oral submissions Ms Berberian submitted a range between fifteen and twenty percent, and in her written schedule she submitted eighteen percent of a most extreme case. Of course, the difference between eighteen percent of a most extreme case and thirty percent of most extreme case is not a difference of twelve percent but the difference between $13,000 and $119,500, such is the working of the Civil Liability Act 2002. A most extreme case, of course, would include quadriplegia and paraplegia, and I have held in another jurisdiction it to include hemiparesis; that is, a partial paralysis of the whole of one side of a young man's body, who was also left with organic brain damage with social disinhibition and other intellectual impairments. 107To suggest that the current case was somewhere near onethird of a most extreme case is insupportable. The plaintiff was at the time of the accident twentyeight days before her sixtysecond birthday, and she is now sixtyfour years of age. The age of a plaintiff is obviously relevant because the longer one is likely to live, the longer is one's experience of pain and suffering and the longer is one's loss of the amenity of life otherwise. Doing the best I can, I could not categorise the current plaintiff's experience of noneconomic loss as anything more than twenty percent of a most extreme case. That would entitle the plaintiff to a lump sum of $18,000. 108Eventually, the plaintiff's out-of-pocket expenses were agreed to be $1,486.75. That ought be allowed to the plaintiff. The future out-of-pocket expenses were estimated by the plaintiff as being $8.42 per week for a further 24 years, which represents the plaintiff's life expectancy. That sum is made up of six annual visits to the plaintiff's general practitioner at $60 per visit and 20 packets of Panadol per annum at $3.90 each. The first figure comes to $6.92 per week; the second $1.50 per week; making a total of $8.42 per week. Using a twentyfouryear multiplier, that comes to $6,212 and I would allow the plaintiff that. 109The plaintiff at the time of her accident was unemployed. However, I accept that she was due to commence work on the following Monday at a fruit shop known as the Golden Banana at Top Ryde, where she would work as assistant manager in the salads and fruit salad and yoghurt section earning $20 per hour for thirtyeight hours per week. That is a loss of $677 net per week. I would allow $677 per week from 31 October 2009 to 24 March 2010 which appears to me to be a period of 21 weeks. If my calculator be working correctly and provided the input into the calculator were accurate, that amounts to a lump sum of $14,217. Essentially the plaintiff asks me to award to her $357 per week, being a loss of half of the net earnings for somebody who was earning $20 per hour for a 38 hour week during periods since 24 March 2010 except for a period when she worked for The Jewellery Group in Broadway. 110The plaintiff essentially asks me to award her $357 per week for ninetyeight weeks, which is $34,986. The plaintiff asks me to award her for the future $357 per week for a further four years' life expectancy less fifteen percent for the vicissitudes of life. That amounts, on the plaintiff's calculations, to $57,534. This brings into sharp contrast a number of matters. The first is that since the accident, the plaintiff obtained employment on seven Saturdays in June and July 2010 and on each of those days she earned $160 gross. In other words she was able to sell her labour for $20 per hour gross, which is the same money she would have earned had she been able to take up the job at the Golden Banana. 111She also worked for L'Oreal at a Myer department store for some weeks commencing on 8 December 2010. Her net weekly earnings there were $461.75 per week, which, of course, is greater than $357 per week net, which is how the plaintiff asks me to work out her economic loss. The plaintiff worked between 14 February 2011 and 24 May 2011 for The Jewellery Group at Broadway and there her earnings were $852.59 net per week, which the plaintiff admitted was the greatest amount of money she had earned in any employment in her working life. 112She was the manager of a retail jewellery store and she clearly liked the work. She resigned her employment, not because she was unable to do the work, but because she wanted time off to spend with her sister who had recently been widowed. The reason that the plaintiff wanted time off work is clearly understandable and in itself laudable. Unfortunately her employer would not give her time off in lieu of overtime worked covering for other staff. That led to a disharmony between the plaintiff and her employer, leading to her resignation. However, the plaintiff retains the ability to earn the sort of money she earned with the Jewellery Group. The problem that the plaintiff has is in finding comparable work. The plaintiff's work with Brides of Beecroft was essentially clerical work and work selling small accessories. The work with L'Oreal was selling cosmetics in the period immediately prior to Christmas. The work for the Jewellery Group was selling jewellery to customers and clearly jewellery, such as rings, chains, earrings, brooches and the like, is not particularly heavy, and the plaintiff was keen to point out that receiving new stock each day just meant receiving one relatively compact plastic bag, which she could easily cope with. 113The other thing that has to be borne in mind is the plaintiff's working history. The working history recorded by Dr Mahmoud AbuArab, a clinical psychologist to whom she was referred by her own solicitors, is this: "In New Zealand, Mrs Ryland worked for three years as a clerk at a legal firm. In Australia she worked for a period of five years as an office worker for an insurance company, followed by 10 years of employment in retail management. Then she managed a newsagency for three years and concurrently she managed her own newsagency for one and a half years. At the time of the accident she was looking for a job and she reported she was offered one to start two days after the accident, but the accident prevented her from doing so. Since then she has been unemployed." 114That history of course was given on 10 September 2010 and clearly the plaintiff had worked at Brides of Beecroft in June and July of that year. The history is somewhat incorrect. However, what it does show is that the plaintiff had long experience in retail management, and in clerical work, and there's nothing to suggest that she could not now to do clerical work or management work. 115The plaintiff's last employment prior to the accident now in question was working for David Jones at Parramatta selling the products of Waterford and Wedgewood. Before that she had worked at David Jones selling Royal Dalton china. Prior to that she worked for David Jones in the city at Market Street, working in the silverware department. In crossexamination it was suggested to the plaintiff that she may be able to work again in a cosmetics department such as L'Oreal at Myer, or perhaps another cosmetic line at David Jones, but the plaintiff said that she thought that she would have difficulty lifting, for example, products of Clarins cosmetics. I found the latter somewhat difficult to accept, bearing in mind the plaintiff had worked at Myer selling L'Oreal in December 2010. 116The matter, of course, is complicated by the plaintiff's ongoing disease of osteoporosis, which of course would prevent her doing many activities she had done in the past, in particular work such as heavy lifting and carrying and pushing and pulling. The reasons therefore for the plaintiff's inability to do many forms of work are probably multifactorial. Furthermore, her ability to earn good money such as the money she earned for the Jewellery Group has not been lost. Doing the best I can, I would allow the plaintiff a cushion for economic loss between 24 March 2010 and today the sum of $15,000, and allow her for the future a sum of $25,000, those latter two portions to include an allowance for foregone superannuation. Actual foregone superannuation in the past, that is, on the sum of $14,217 is $1,279.53. 117The plaintiff's remaining claim is for past and future domestic assistance. Under s 15(3) of the Civil Liability Act 2002, as interpreted by the Court of Appeal in Hill v Forrester [2010] NSWCA 170, the plaintiff is required to prove that she had a continuous need for gratuitous care for a period of at least six months of six hours per week and that any ongoing gratuitous care amounts to care for at least six hours per week. MFI A is a schedule of the plaintiff's claim for domestic assistance. That is divided into two parts. The plaintiff's claim is for "an initial period" of three to four months, for which the plaintiff claims care of twentytwo and a quarter hours per week. The inference I drew from the evidence is that this initial period was from 1 November 2009 to 24 March 2010, which is a period of almost five months less the two periods of time when the plaintiff was in hospital, each of which there was three days, so less six days. 118The plaintiff then claims since her convalescence from her right elbow surgery, which in accordance with my earlier finding would be by 24 March 2010, amounts totalling six hours and two minutes per week. However, the plaintiff has failed to establish that. For example, according to the schedule prepared by counsel for the plaintiff, the assistance given by the plaintiff's husband for vacuuming/mopping/sweeping was for three hours per week, relying on p 25 line 11 of the transcript. However, on p 97 line 02 of the transcript, this was for a "couple of hours per week". A couple means two, not three. A claim is also made for onequarter of an hour per week for "making beds." As I understand the claim, this is in fact not for making the bed as such but for changing it. The plaintiff relies on p 27 line 17 of the transcript. However, on p 100 line 42 of the transcript, this is reduced to "five or 10 minutes", although there is certainly some confusion as to whether that means the daily making the bed or the weekly changing of the bed. If the daily making of the bed takes five minutes, one may understand that changing the bed might take 10 minutes. The plaintiff claims in the same part of the schedule seven minutes per week for assistance with dressing, and that is mainly doing up the rear zipper of a dress should the plaintiff be wearing a dress with a rear zipper. In crossexamination the plaintiff admitted on p 99 at line 43 that zipping up the rear of her dress would take merely a few seconds. Ladies sometimes wear zip up dresses and although I am a widower, I can distinctly recall zipping up ladies' dresses. I am sure that most married men have at some stage or other zipped up the rear of ladies' dresses, just as I might hazard the observation that there are many unmarried men who are used to performing the opposite activity. 119When an estimate bringing everything together, bringing something out is at 6 hours 2 minutes per week, but bearing in mind the concession that the vacuuming, mopping and sweeping might only take a couple of hours, the plaintiff has in my view failed to establish the ongoing requirement of at least six hours per day for at least six months. The plaintiff's claim for gratuitous assistance therefore in my view fails at the threshold. 120I also bear this in mind; Dr Berry in his report says this on the question of domestic assistance: "You will note that the patient has difficulty driving and a significant part of normal household duties is carried out by her daughter and soninlaw with whom she and her husband live. I would expect that she would have difficulties with such activities as mopping, sweeping, vacuuming and cleaning bathrooms. I would consider an allowance of six hours a week for outside assistance would be reasonable should her husband and herself be living on their own." 121Of course the plaintiff and her husband continue to live with the plaintiff's daughter and the plaintiff's soninlaw and the plaintiff's two grandchildren from her daughter and soninlaw. The mopping, sweeping, vacuuming and cleaning of bathrooms and other rooms benefit not just the plaintiff but also her husband. 122Insofar as there was a claim for gardening, which is pressed in the schedule, that benefits not only the plaintiff but also her husband, her daughter, her soninlaw and her grandchildren. 123In the opinion of Dr Smith, the plaintiff did not need, at the time of his review of her, any domestic assistance, and accepted that she may have needed some assistance in the period of four to six weeks after the fall and for a similar period post operation. That of course amounts to some eighteen weeks, which is consistent with some four and a half months, essentially the period from 1 November 2009 to 24 March 2010. In the circumstances I again point out that the plaintiff has failed to establish the threshold. In any event, again, the plaintiff's osteoporosis and the fact that it affects her neck, thoracic back, low back, hip joints and other parts of the spine, and causes her problems, clearly is another factor which might indicate she would have needed assistance in any event, even absent these injuries to her olecrana. 124The final issue that I should mention concerns credit. In the particulars filed on 17 November 2011, the plaintiff alleges injuries to her neck and upper back and lower back, and right shoulder, as well as shock. No evidence was pressed about the injuries to the plaintiff's spine, and in light of prior complaints of spinal problems that is completely understandable. A large number of the continuing disabilities are, therefore, irrelevant. However, amongst those is an allegation of anxiety and depression, which was specifically abandoned by learned counsel for the plaintiff early in the hearing. However, as I have already mentioned the plaintiff qualified Dr AbuArab. Dr AbuArab obtained a history that the plaintiff had enjoyed good health prior to the accident on 31 October 2009, and also obtained a history that there had been no previous accidents nor any previous applications for compensation. There was no history of any psychiatric trauma. 125Dr AbuArab diagnosed major depressive disorder with an alternative diagnosis of chronic adjustment disorder with anxiety and depressed mood. He attributed all those psychiatric conditions to the fall now in question. Annexed to his formal report is a "pain patient profile" in which the following complaints are recorded: "I have a lot of trouble with sleep. I wake with pain and feeling tired most mornings. Much of the time I feel useless to myself and others. I am not happy. I have no interest in outside activities and other people. I now have more trouble making decisions than I used to. Most of the time I feel hopeless that my condition will improve. My life is in a rut. I am not satisfied with my life at present. I often feel so nervous and on edge that I am miserable. I feel with angry with somebody or something much of the time. It seems like I stay upset much of the time. I frequently say things in anger that I later wish I hadn't. Sometimes I feel like I am about to lose my mind." 126That was not the lady who presented to me in the witness box. She was a relatively cheerful lady who presented very well. In fact, one might be forgiven for being initially very impressed by her. The plaintiff's general practitioner was, both before and after this fall, Dr Sinha. The plaintiff attended upon him on 14 December 2009. The first thing of which the plaintiff complained to the doctor were the injuries to her elbows and having missed out on her new job because of the accident. The second part of the complaint is this: "Husband had affair (MarchApril). [leading to] feels devastated. Was coping until fall. Four children support her. Occasional thoughts of suicide [she] wouldn't be cause of children. Sometimes gets in car and drives randomly. Difficulty sleeping 3.00am [to] 8 or 9.00am. (valerian [leads to] leg cramps). Poor appetite, lost 10 kg (but happy with that). Meditates. No [alcohol]. Had 'spiritual counselling' by phone in meditation group in USA." 127The doctor then notes that the plaintiff was given details of a counsellor and there may be a suggestion of a referral to a mental health provider. That psychiatric history recorded by Dr Sinha was denied. Although the plaintiff did admit that there had been problems in the past there were not problems at any time after the time of the fall. The history to Dr Sinha is the opposite. It is, furthermore, completely inconsistent with what is recorded by Dr AbuArab. Therefore that redounds, in my view, poorly on the plaintiff's credit and it is something that I have borne in mind making the findings I have as to damages. 128If my mathematics be correct, which is always problematical, the total of the damages I would have awarded to the plaintiff if she were successful and without any reduction for contributory negligence would have been $81,195.28. Any further reasons for judgment required? SPEAKER: No, your Honour. SPEAKER: I'm sorry, your Honour, I HIS HONOUR: Any further reasons for judgment required? SPEAKER: Only in respect of an application for an indemnity costs order. HIS HONOUR: That's not a reason. SPEAKER: No, that's the only other submission we'd be seeking to make. HIS HONOUR: All right, thank you. For those reasons I give verdict and judgment for the defendant. I will deal with costs tomorrow morning at 10.