Trajkovski v Ballgate Pty Limited

District Court of NSW|2018-10-18|Before: Lawyers J

Solicitors: Justice Lawyers (plaintiff) McCabe Curwood (defendant) File Number(s): 2016/384919

Introduction

By a Statement of Claim filed on 22 December 2016 the plaintiff sought damages from the defendant in negligence. The plaintiff alleged that he was a patron at The Grand Hotel at Rockdale, which was operated by the defendant, on 15 January 2014. He alleged that on that day there was a piece of broken glass on the ground at the hotel and he trod on it.
By its Defence filed on 2 February 2018 the defendant admitted owing a duty of care to entrants on its premises but did not admit that the plaintiff stepped on broken glass at the hotel. The defendant denied negligence and pleaded the "obvious risk" provisions in the Civil Liability Act 2002 (NSW) (CLA). The defendant also pleaded contributory negligence, but abandoned this count at the commencement of the hearing.

Evidence of the plaintiff

The plaintiff was born on 28 September 1958 in Macedonia. He finished his education in his early 20s having qualified as an electronic engineer and he worked in the trade of painting. He came to Australia in 1989.
When the plaintiff arrived in Australia he did painting for a living. After one and half years he worked for 10 years as a painter in partnership with two of his brothers. After about 2000 the plaintiff worked for himself as a painter. He was married but is now divorced and has two adult sons.
The plaintiff said that in January 2014 he was working as a painter and that he had sub-contractors working for him. He lived at Brighton-Le-Sands with his son Kire, his daughter-in-law and his grandson.
On 14 January 2014 the plaintiff went to The Grand Hotel at Rockdale at about 6.00pm with two friends - Mr Cklamovski and Mr Petrov. The plaintiff went inside the hotel and purchased three schooners of beer. He then went back outside the hotel and sat with his friends at a table in an area covered by an awning, at the side of the hotel. The plaintiff identified in photographs where this table was. Leading from the front of the hotel, which is on a main road, to the rear of the hotel, where there is a parking area, is a pedestrian lane. Tables and chairs were arranged along the side of the hotel, separated from pedestrian traffic by low movable screens. In its Defence the defendant originally pleaded that it owed no duty of care to people in this outside area. However, that was abandoned at the commencement of the hearing. Clearly where the plaintiff and his friends sat was part of the hotel.
The plaintiff said that he and his friends sat at the table for somewhere between 35 and 45 minutes, during which time they had one beer each and chatted. The plaintiff was wearing sneakers with socks. As he got up to leave the table, he stepped on broken glass which penetrated the sole of his right sneaker. This glass was on the ground underneath the table but was not noticed by any of the three patrons. The plaintiff said that he pulled the piece of glass out of the sole of his shoe and disposed of it in the nearest bin on King Street. At that time it did not hurt much. There was not much bleeding.
The plaintiff said that there was a lady from the hotel nearby. He told her that he cut his foot on the broken glass. She apologised but he said that it was okay and there was nothing to worry about. He said that he showed the lady the piece of broken glass and showed her other pieces of glass on the ground under the table.
The three friends then split up and the plaintiff went to a coffee shop nearby where he met another friend and had a coffee. He then went home. His foot was bleeding but he was not in much pain.
In the small hours of the next morning he woke up because of pain. His leg was painful and swollen up to the knee and looked infected. Later that day he went to his GP who said that he had an infection and he should go to hospital. The plaintiff's son took him to St George Hospital. He spent 12 days there and underwent an operation. He was discharged home with a supply of strong antibiotics. Several days after discharge the infection recurred and he went back to hospital for somewhere between four and six days. There was an operation to clean his wound.
The plaintiff said that there was a third admission to hospital when the wound wouldn't heal. It was left open to drain but was then stitched. After a long time the wound healed. For five to six weeks his leg was in plaster and he was on crutches. He then wore an orthopaedic boot. About to five to six months after the accident at the hotel the plaintiff's surgeon Dr Viglione said that he did not have to come to see him any more.
The plaintiff said that he had not worked in his painting business since the accident and that he could not work because of pain in his leg. He said that his leg was okay now, but he often had to take pain killers because of pain in the leg. The pain was severe at night in his sleep. The night before the trial he had taken one prescribed tablet of Endone, a strong pain killer. Other pain killers were used rarely.
The plaintiff said that he regularly went back to Macedonia and had last done so two months ago. He had been wearing insoles inside his shoes for the last four years and would have to have another pair made at a cost of $400. He felt that his foot was getting worse.
The plaintiff gave evidence that he suffers from diabetes which was diagnosed five to six years ago. He sees his general practitioner once a month to obtain prescriptions for medication to deal with diabetes, high cholesterol, schizophrenia, depression and pain. He has been taking tablets for high cholesterol for four to five years. The plaintiff has been having treatment for sleep apnoea for one year.
The plaintiff gave evidence that when he was a young man in Macedonia he had treatment for schizophrenia. In recent times he has made three suicide attempts. He has been diagnosed with schizophrenia and depression. He said that between 1989 and 2014 he had not had any treatment for a mental condition.
The plaintiff said that he went onto a Newstart Allowance after the accident. Two to three years ago he was transferred to a Disability Support Pension on which he is paid $1,040 per fortnight.
In cross-examination the plaintiff said that while he had done no paid work since the accident at the hotel, he had helped his son run a music store and café. He said that this was not for money. He had been helping the son in that job even before the accident at the hotel.
The plaintiff was cross-examined about an attendance upon Dr Jager, a psychiatrist who he saw for medico-legal purposes at the request of his own solicitor. Dr Jager asked the plaintiff about trouble with the police, and the plaintiff acknowledged that he only told Dr Jager about two charges of driving with the prescribed concentration of alcohol. The plaintiff was cross-examined about a large number of other matters which brought him into contact with the police. I will review those below in dealing with the material obtained on subpoena from the police and tendered at the trial. In short, there was an incident in 1997 which involved an assault at another hotel, and the plaintiff producing a revolver, which turned out to have been stolen. There was another incident in 1997 when the police spoke to the plaintiff about hitting another person with a piece of timber. He was asked about an incident in March 1999 when it was suggested that the plaintiff assaulted a person who had been riding a scooter. The plaintiff said in cross-examination that the incident involving the piece of timber and the incident involving the scooter were to do with his brother and not him.
The plaintiff was also cross-examined about an incident in September 2006 when he was charged with stealing from a hardware store. In 2013 the police went to the Korzo Restaurant and asked those present about loud music and liquor being sold on the premises. It was put to the plaintiff that he had told the police that he was the manager of that restaurant at the time.
There were incidents in January 2014 and June 2014 involving the Junior Café, which was the coffee shop operated by the plaintiff's son. It was put to the plaintiff that on both occasions he told the police that he managed the café. There was also an incident in July 2016 when the police went to the Junior Café concerning the sale of alcohol. It was put to the plaintiff that he introduced himself to the police as the owner of the café.
The plaintiff denied that he was ever working at the café for money. He said that he was only ever helping his son. It was put to the plaintiff that he told Centrelink that he had been a helper in the café until stepping on a piece of glass.
It was put to the plaintiff that at St George Hospital on 15 January 2014 he told the staff that he stepped on a piece of glass when barefoot in a coffee shop. He said that there was "not a chance" that he told the hospital that. It was also suggested that on 17 January 2014, when reviewed by an Orthopaedic Registrar, he told that doctor that he stepped on glass when cleaning up his own shop.
The plaintiff was cross-examined about a work assessment made in a face to face meeting with an officer of Centrelink in 2015. I will deal more fully with that interview below when I come to review the evidence tendered from Centrelink.
The plaintiff was cross-examined about reports from a GP Dr Todorovic, to Centrelink. No evidence was tendered by the plaintiff from that doctor. The plaintiff was also cross-examined about regularly seeing his GP Dr Cung, but no evidence was tendered by the plaintiff from that doctor. The plaintiff was cross-examined about an admission to St George Hospital on 25 May 2015 in relation to a suicide attempt. No evidence from that hospital was tendered for the plaintiff.
The plaintiff was cross-examined about an affidavit sworn on 15 June 2017 and filed in court in relation to an interlocutory matter. He acknowledged that in paragraph 10 of that affidavit he said that he had suffered severe mental illness for several years prior to the injury. He said that at times he had depression and that he suffered from alcoholism.

Evidence of the plaintiff's companions

One of the two friends at the hotel on the day of the accident was Mr Alexander Cklamovski. He has known the plaintiff for thirty years. He said that the three men arrived at the hotel at 6.00pm. They drank one schooner each. The plaintiff bought the drinks by going inside the hotel and bringing them to the outside area where the three men sat. He said that they were there no more than one hour.
When the men came to leave he said that the plaintiff noticed glass underneath his sandshoe. He went inside to complain about the broken glass under the table. He then came back. Mr Cklamovski could not remember a lady from the hotel coming outside. He did see the glass sticking into the sole of the plaintiff's shoe. He said the plaintiff took the glass out and they then all left.
In cross-examination Mr Cklamovski said that he often went to coffee shops with the plaintiff and that he had been to the plaintiff's son's coffee shop and seen the plaintiff helping out.
Mr Petar Petrov was the third man at the hotel. He has known the plaintiff for ten years. He recalled that they got to the hotel between 6.00pm and 6.30pm. They had all been having a coffee together at a Greek coffee shop about 100-150 metres away from the hotel. The plaintiff suggested they go and have a beer. The plaintiff went inside to get three beers and the men then sat at a table outside and talked. They each only had one beer and were there for forty to fifty minutes. They then went home.
As they were getting up to go he recalled the plaintiff saying "what's this?" and he saw broken glass underneath the plaintiff's shoe. The plaintiff said that he was going inside to talk with hotel staff. Mr Petrov recalled a woman from the hotel coming out and meeting the plaintiff at the door. She said sorry and the plaintiff said there was no problem. They then all went home. Mr Petrov saw the plaintiff pull the piece of broken glass off from the sole of his shoe but does not know what happened to it after that.

Evidence tendered by the defendant

The defendant tendered a bundle of material obtained on subpoena from the New South Wales Police. The plaintiff has had significant contact with the police over the years. He has had two convictions for driving with the prescribed concentration of alcohol. He has been spoken to by the police on several occasions regarding the commission of acts of violence or making threats of violence. He has been spoken to in relation to a shoplifting charge. He has been spoken to in relation to the continual service of liquor at his son's café, when the café does not have a liquor licence.
The material from the police was tendered for two purposes. The first was to found a submission that the plaintiff had not been honest when he spoke to Dr Jager, the medico-legal psychiatrist. It was submitted that Dr Jager had asked the plaintiff about his involvement with the police, but that the plaintiff had only mentioned the two PCA charges.
However, all Dr Jager recorded in his report on this topic was: "Forensic He has had two drink-driving offences."
Who knows what question Dr Jager asked to elicit that response? In view of the fact that Dr Jager thought that the primary psychiatric problem of the plaintiff was Alcohol Dependence, he may have asked a specific question about offences committed under the influence of alcohol. I do not find that the plaintiff lied to Dr Jager on that topic.
The second purpose for tendering the material from the police was that, when the police spoke to the plaintiff on more than one occasion about liquor being served at the plaintiff's son's café, the plaintiff described himself as the manager or the owner of the café. In his evidence the plaintiff said that he only ever helped out his son at the café and was never paid for doing so. There was also material tendered by the defendant, which came from Centrelink, in which the plaintiff told Centrelink that he was the manager of the café. I accept that the plaintiff did tell the police and Centrelink that he was either the manager or the owner of the café. However, the plaintiff's tax returns (dealt with below) show his occupation as painter. The defendant had ample opportunity to test that assertion but no material in relation to the plaintiff's occupation was tendered by either side, apart from the tax returns. The plaintiff did say that he helped his son out as much as possible at the café, something also recorded by the various doctors who the plaintiff has seen since the hotel incident.
I find that it does not matter whether or not the plaintiff said that he was the owner or manager of the café or whether he indeed was the owner or the manager. It is not an occupation which led to earning any income and it does not found any part of the plaintiff's claim for damages. It is hard to understand why, if the plaintiff was just an unpaid casual helper at the café, he described himself to others as the manager or owner. However, the plaintiff has a significant psychiatric history, including a history of delusions and hallucinations. I have no doubt that he said these things to the police and Centrelink, but I have no idea why he said it. In the long run it does not matter to the determination of the issues in this case.
The defendant also tendered a bundle of material from treating doctors and hospitals, together with material from Centrelink interviews with the plaintiff.
The treating surgeon Dr Viglione reported on 12 August 2014 to the plaintiff's general practitioner Dr Todorovic. Dr Viglione described the right foot as having "healed up quite well". He noted that the plaintiff still got some pain in the region of the foot where the glass penetrated. He said that the ulcer was well healed.
Dr Viglione also noted a complaint of pain in the cervico thoracic junction where there was arthritis. This of course had nothing to do with the hotel incident. He concluded his report as follows: "He asked me if I would support him in being permanently disabled. I think for his previous occupation he is at that point because he has a severe peripheral neuropathy and is not going to have good weight-bearing function regardless of what we do for him now. To summarise further, I would support him as having a disability worthy of a permanent pension."
No report from Dr Viglione was tendered by the plaintiff. The severe peripheral neuropathy of which Dr Viglione spoke is of course related to diabetes and not to the injury at the hotel. It is in both feet, not just the foot which was injured by the glass. This report suggests that the reason the plaintiff has not been able to work as a painter at that point in August 2014, was because of his diabetic condition rather than because of any specific injury suffered in the hotel incident. For that reason the defendant submitted that past economic loss should be confined to a period between January 2014 and August 2014. I accept with that submission. I accept the opinion of Dr Viglione. Damages for past economic loss will be confined to 30 weeks from January to August 2014.
The defendant also tendered a report of Dr John Estell, consultant physician in rehabilitation medicine at St George and Sutherland Hospitals. In his report dated 4 April 2014 to Dr Viglione he said that the plaintiff was complaining of neuropathic pain in the feet, worse particularly at night. Again, this is a complaint about both feet, related to diabetes rather than to the specific injury suffered in the hotel incident.
In the material tendered by the defendant was a job capacity assessment report dated 31 August 2015 performed by Centrelink. A reading of this report demonstrates just how many doctors the plaintiff has seen, whose evidence was not tendered in the case. There was Dr Todorovic GP and Dr Cung GP. There was Dr Babidge, treating psychiatrist and Dr Simonova, psychiatric registrar. There was also a Mr Stone, who was either a psychiatric nurse or a psychiatric counsellor. There was Dr Elliot, treating psychiatrist.

Plaintiff's Tax Returns

The plaintiff tendered some, but not all, of his tax returns. No returns were tendered for the years 2009/2010, 2010/2011 and 2011/2012. There was no explanation provided for the absence of these returns.
The tax return for 2012/2013 showed a gross income of $89,700 and a nett income of $68,564. The tax return for 2013/2014 showed a gross income of $55,600 and a nett income of $45,983. It was submitted for the plaintiff that past economic loss should be calculated on the average of those two years, which was said to be $57,735 nett per annum. I do not think that that is a correct approach. The plaintiff's injury occurred in January 2014, which means that his income in the 2013/2014 year was diminished by the fact that he did not work for almost half a year. I think that the 2012/2013 income tax return provides the best guide, subject to the matters dealt with below.
In cross-examination it was pointed out to the plaintiff that his 2012/2013 and his 2013/2014 tax returns were not filed on time, but were filed well after the accident. That might excite suspicion, but there was no attempt by the defendant to cross-examine the plaintiff upon original records such as bank statements, invoices or receipts, to show in any way that the tax returns were inaccurate. I therefore propose to proceed on the basis that the 2012/2013 return is accurate.
It appears from the 2012/2013 tax return that the plaintiff conducted his painting business through a company Ideal Painting Service Pty Limited. That company paid him a wage. The plaintiff gave no evidence about his company. In that tax year the company paid the plaintiff a wage of $90,000, from which tax and Medicare levies totalling $23,378.50 were payable. This gives an income for that year nett of tax of $66,621.50. However, the plaintiff's company, while paying him a wage of $90,000, made a loss before income tax of $5,909.81. To obtain a realistic figure for the plaintiff's earnings in 2012/2013, this amount should be deducted, leaving nett taxable income for the year of $60,711.59. This equates to $1,167.53 nett per week. That is the figure that I will adopt for a calculation of past economic loss.

Findings of Fact - Liability

I find that broken glass was under the table at the hotel and entered the plaintiff's foot when he stood up to leave the table. An alternative theory was put by the defendant during submissions, which was that the plaintiff had picked up the glass in the sole of his shoe at some earlier point, either at the coffee shop where the three men first met or on the walk of 100-150 metres to the hotel. I reject that submission. The plaintiff was only wearing sneakers and if broken glass penetrated the sneakers it would also, most likely, penetrate the plaintiff's foot at the same time. It is highly unlikely that the plaintiff walked any distance at all with glass sticking into his foot through the sole of his shoe.
An alternative submission was that in accordance with the notes made at the hospital, the plaintiff had trodden on broken glass at his own shop, or at least at the coffee shop of his son. I reject this submission as well. The plaintiff gave his evidence through a Macedonian interpreter. Many times the plaintiff started to answer a question before it was fully interpreted. Many times the plaintiff started to answer in English. While the plaintiff may regard himself as competent in English, it was clear to me that this was not the case. The plaintiff has given instructions to his solicitor in Macedonian, a language which she speaks. He has attended several of the doctors with someone who is more fluent in English that he is. I find that the most likely inference is that the notes made at the hospital were made after the plaintiff attempted to explain himself in English, but did not accurately convey what happened. I am fortified in that conclusion by the fact that the plaintiff's two companions Mr Cklamovski and Mr Petrov, both gave evidence, which was not challenged by cross-examination, that they saw the broken glass in the plaintiff's shoe. Neither had any reason to lie, and it was not even suggested that they were mistaken in giving such evidence.
Against that analysis, I make the following findings of fact.
The plaintiff and his two friends Mr Cklamovski and Mr Petrov went to The Grand Hotel at Rockdale at about 6.00pm on 14 January 2014.
The plaintiff went inside the hotel and purchased three schooners of beer and came back out.
The three men sat at a table in an outside area of the hotel, adjacent to a pedestrian lane and underneath an awning.
The three men talked while sitting at their table for about 30-40 minutes and drank their one beer each.
The three men stood up to go, and at that time the plaintiff put weight on his right foot and trod on a piece of broken glass which, unbeknown to him or his companions, was on the ground underneath the table at the hotel.
Mr Cklamovski and Mr Petrov became aware that this had happened and both saw the broken glass.
The plaintiff spoke to a female employee of the hotel and told her that he had trod on broken glass underneath the table.
The plaintiff told that employee that there were also other pieces of broken glass underneath the table.
The three men then went their separate ways.
The plaintiff did not retain the piece of broken glass which pierced his shoe, but he disposed of it in a nearby rubbish bin.
The plaintiff initially thought that he had not been seriously injured by the broken glass, but within a period of hours he developed a significant infection in his right foot which required an admission to hospital and surgical treatment.

Civil Liability Act 2002

The court must deal with the following liability issues under the CLA.
The court must make findings as to the nature of the duty of care, if any, the defendant owes to the plaintiff, the extent of the duty, breach and damage. This is because the "constituent elements of the tort of negligence - duty, breach and damage - considered seriatim, progressively increases the specificity of the inquiry into how the incident occurred and the way in which damage was sustained": Neindorf v Junkovic [2005] HCA 75.
The court must find the facts and "draw from them the inference of fact whether or not the defendant had been negligent": Benmax v Austin Motor Co Limited [1955] AC 370 at 373-374.

Duty of care

The occupier of premises owes a duty to take reasonable care to avoid a foreseeable risk of injury to the claimant, arising from the physical state of its land, on the assumption that the claimant used reasonable care for their own safety: Australian Safeways Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 at 488; Roads & Traffic Authorities (NSW) v Dederer [2007] HCA 42: (2007) 234 CLR 334 at [45].
Gleeson JA in Reid v Commercial Club (Albury) Limited [2014] NSWCA 98 said at [159]: "The scope of the occupier's duty of care is marked out by the relationship between the occupier and users exercising reasonable care for their own safety. Thus, 'the weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case': Roads & Traffic Authority of NSW v Dederer at [45]. This involves a factual judgment which may depend on the circumstances of the case: Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; 221 CLR 234 at [35]."
In paragraph 3(a) of its Defence, the defendant admitted that it owned a duty to entrants on its premises, but did not plead what is asserted to be the content of that duty.
I find that the defendant owed a duty of care to avoid a foreseeable risk of injury to the plaintiff, arising from broken glass being under a table at the defendant's hotel, upon which patrons might step and suffer injury.

Breach of duty of care

Foreseeability of risk of injury is not determinative of breach of duty of care: Francis v Lewis [2003] NSWCA 152 at [40]. The occupier's obligation is that of reasonable care. Its duty is not to make the premises as safe as 'reasonable care and skill on the part of anyone can make them': Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 at [92]. It is not an insurer of entrants: Kocis v SE Dickens Pty Limited [1998] 3 VR 408 at 429. What constitutes the exercise of reasonable care depends on the circumstances of each case: Wilkinson v Law Courts Limited [2001] NSWCA 196 at [32].
The question whether the defendant breached its duty of care to the plaintiff is governed by Section 5B of the CLA which provides: "(1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
Section 5B can be seen to reflect the common law as to the standard of care (that is, the measure of the discharge of the duty of care) applicable to an occupier which is what, if anything, a reasonable person in the occupier's position would, in the circumstances, do by way of response to the foreseeable risk: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 662-663; Australia Safeway Stores [at 488]; Neindorf v Junkovic at [8].
Section 5C of the CLA is also relevant, in particular, s 5C(b) which provides that "the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done".
I make the following findings in relation to paragraphs (a) and (b) of s 5B(1) of the CLA: 1. I find that the risk was foreseeable to the defendant. The defendant being a hotelier ought to have known that there could be broken glass on the floor of the areas of the hotel where patrons would stand or sit and that broken glass could lead to injury; 2. I find that the risk was not insignificant. Any cut from broken glass can cause a penetrating wound. There is also a risk of infection from broken glass, a risk which came home in the present case. The risk was not insignificant because, although it may not materialise, it was nevertheless not trivial: Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 at [18].

Proving breach of duty

The conduct relevant to the breach inquiry is the "foreseeability of harm resulting from the acts or omissions of the defendant, or its servants, proved to have occurred": Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 639-640. At the stage of breach, the court has to identify "with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk": Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54: (2002) 211 CLR 540 at [192].
Although the judgment as to what the reasonable person would have done to avoid what is known at trial to have occurred must be made after the event, it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury: Vairy v Wyong Shire Council [2005] HCA 92; (2005) 223 CLR 422 at [126]; applied in Adeels Palace Pty Limited v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [31].
As is apparent from Section 5C(b) of the CLA, whether reasonable care has been exercised is not determined by asking if different conduct would have produced a different outcome: Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 at [92]. The test for negligence is always "whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care": Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 at [13].
The plaintiff bears the legal (and evidential) burden of proving on the balance of probabilities on all the evidence at trial that the defendant owed a duty of care which had been breached in a manner which caused injuries; if the plaintiff calls evidence "sufficiently weighty to entitle, but not compel, a reasonable trier of fact to find in [his] favour", the defendant bears an "'evidential burden' in the sense of a 'provisional' or 'tactical' burden" such that if they fail "to call any or any weighty evidence, [they ran] a risk of losing on the issue": Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 at [46], [50], [53].

The Risk of Harm

The breach inquiry requires the primary judge to identify accurately the actual risk of injury the plaintiff faced, as it is only through the correct identification of the risk that the trial judge could determine what a reasonable response to that risk would be: Roads & Traffic Authority of NSW v Dederer at [18], [59].
In the present case I find that the risk of harm was the risk of a patron of the hotel treading upon a piece of broken glass and suffering injury.

Did the defendant fail to take precautions against a risk of harm which a reasonable person in its position would have taken?

In the Statement of Claim the plaintiff pleaded the following particulars of precautions: 1. Removing the piece of broken glass; 2. Placing a covering over the piece of broken glass; 3. Warning the plaintiff of the piece of broken glass; 4. Placing a barrier around the piece of broken glass; 5. Inspecting the ground in the enclosure [this was how the pleading described the area in the hotel where the plaintiff and his friends were sitting]; 6. Illuminating the ground in the enclosure; 7. Having a reasonable system of cleaning the ground in the enclosure; 8. Ensuring that persons engaged to inspect the ground in the enclosure did so regularly and in a competent manner; 9. Ensuring that persons engaged to clean the ground in the enclosure did so regularly and in a competent manner.
A finding in accordance with s 5B(1)(c) of the CLA that the defendant should have taken precautions is only to be made after the court has considered each of the matters in s 5B(2). Those matters refer both to the risk and to the precautions: Bunnings Group Ltd v Giudice [2018] NSWCA 144 at [35].
The court is commanded, by s 5B(2) of the CLA, to consider each of the matters in paragraphs (a), (b), (c) and (d) of that sub-section before reaching a conclusion on s 5B(1)(c). It is necessary to consider the particular precautions individually: Bunnings at [38].
It can be seen that there is some duplication in the pleaded precautions. Particular (e) and particular (h) referred to inspecting the ground in the hotel where the plaintiff was sitting. Particular (g) and particular (i) referred to cleaning the ground in the hotel where the plaintiff was sitting. Particular (a) pleads that a reasonable precaution would have been to remove the piece of broken glass, which is a precaution which would logically follow if there was a reasonable system of inspecting or cleaning the floor in the hotel where the plaintiff was sitting.
I find that particular (b) of placing a covering over the piece of broken glass and particular (d) of placing a barrier around the piece of broken glass are not precautions which a reasonable defendant would have taken. They might have been a short term solution to the risk created by broken glass being on the floor of the hotel, but sooner or later any covering or barrier would have been moved or disturbed and the piece of broken glass on the ground would again pose a risk to patrons.
I also find that it was not a reasonable precaution for the defendant to illuminate the ground in the enclosure - particular (f). There was no need for illumination of the ground at the time the accident occurred, as it was daylight in summer. Further, it does not seem practical, and it would be an unnecessary burden, to provide lighting underneath tables. It is not something that is ever seen in hotels or other places where people sit at tables such as restaurants.
The particulars alleging the need for a system of inspecting the ground and a system of cleaning the ground are really two sides of the one coin. The particular of removing the piece of broken glass is the end result of inspection and cleaning. Put compendiously, the precaution which the defendant should have taken, was to become aware of the broken glass (by inspection or cleaning or both) and remove it so that it did not pose a risk to patrons of the hotel.
There was no expert evidence called by either side to establish any accepted level of observance and cleaning, in an area of a hotel where patrons sat to consume their drinks.
The question for consideration is whether, on the facts which I have found, would a reasonable person in the position of the defendant have taken precautions: Jackson v McDonald's Australia Ltd [2014] NSWCA 162 at [89].
Drinks at this hotel were served in glasses. It is notorious that if a glass is dropped upon a hard surface, it might break into sharp pieces. The surface underneath the table where the three men sat was a hard surface.
When patrons at a hotel sit down at a table, it is not to be expected that they will check under the table to see if there is any debris there. The withdrawal of the plea of contributory negligence by the defendant is ample demonstration that patrons are not expected to make an inspection of the area where they sit.
Patrons at this hotel bought their drinks from the bar and carried them to the table themselves.
I infer that any empty glasses at the tables would have been collected by a staff member of the hotel, from time to time.
I find that it would have been a reasonable precaution to take, to train or require such staff member to check the floor underneath the table from which glasses were collected, to see if anything had been left there by patrons who had left glasses on the table. This could have been a simple visual inspection. At and before 6.00pm in summer there was adequate light to make such an inspection without the need for artificial light. It would not have cost anything or been in any way onerous for the person picking up glasses to have looked underneath the table to see if there was any object which might injure a patron.
The accident to the plaintiff occurred on a summer evening at a suburban hotel. There was no evidence about dress rules at the hotel, but it would not be unusual to see patrons sitting at an outdoor table in January wearing only thongs, or even having bare feet. Any patron who sat down at a table, under which there was broken glass, would be at risk of treading on the glass and having the glass penetrate into their foot.
When the three men went to the table at 6.00pm (presumably eight hours after the hotel opened), there was no evidence that there were any old glasses left on their table. I infer that any glasses left at the table by previous patrons must have been cleaned up during the day, and such a clean-up would have given the opportunity to a reasonable hotel employee to check underneath the table for broken glass.
Even if the table had not been used at all in the eight hours prior to the plaintiff and his two friends sitting there, the table was in an outdoor area adjacent to a public laneway. The tables would have been placed there having been stored inside overnight, or if not, some inspection should have been made of the area when the hotel opened, to make sure that the area was safe for patrons who would come later in the day. Such an inspection needed to be no more than visual observation of the state of the ground underneath the tables.
I make the following findings in relation to s 5B(2) of the CLA: 1. The probability that harm would occur if care were not taken was significant. Any patron treading on broken glass could sustain a penetrating injury and an infection. 2. The likely seriousness of the harm was significant - any cut created by broken glass is painful, will lead to loss of blood and to scarring, at the very least. 3. The burden of taking precautions to avoid the risk of harm, by inspecting or cleaning the floor underneath the table (or by both inspection and cleaning) and removing the broken glass was minimal. I have inferred that a person would have been employed by the hotel to clean up used glasses left on tables by patrons. It would have taken that person hardly any time at all, and would not have cost the hotel anything, to also check under and around each table for broken glass when the table was cleared, and to remove any broken glass which they found. 4. The social utility of the activity that created the risk of harm was that the defendant operated a hotel for profit. There was no reason why it should not have taken reasonable precautions against the risk of harm.
I find that the defendant failed to take precautions to ascertain (by inspection or cleaning or both) that there was a broken glass under the table and to remove the broken glass. A reasonable person would have taken such precautions against the identified risk of harm. I therefore make a finding of breach of duty of care against the defendant.
For the same reasons I also find that the defendant failed to take the precaution of warning the plaintiff of the presence of the broken glass.

Causation

Section 5D(1) of the CLA provides: "A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)."
In Strong v Woolworths Limited, the effect of Section 5D(1)(a) was stated thus: "The determination of factual causation under Section 5D(1)(a) is a statutory statement of the 'but for' test of causation: the plaintiff would not have suffered the particular harm but for the defendant's negligence. … Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W."
Section 5E of the CLA provides: "In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."
In order to establish that the harm the plaintiff suffered was referrable to the negligence of the defendant, the plaintiff has to prove, on the balance of probabilities two discrete yet inter-related propositions: first, that there was broken glass under his shoe when he stood up to leave the table; and secondly that the presence of that broken glass caused his injury: Jackson v McDonald's Australia Limited at [112]. It is for the plaintiff to show, positively and to the civil standard of proof, that if the precaution had been taken, then the injury would not have been suffered; Bunnings at [43].
I have already found that there was broken glass under the plaintiff's shoe before he stood up at the table and that the penetration of that broken glass through the plaintiff's shoe caused injury to him. If the precaution of ascertaining that there was broken glass under the table and picking it up had been taken, that injury would not have been suffered.
I find that the negligence of the defendant caused harm to the plaintiff because: 1. the negligence of the defendant was a necessary condition for the occurrence of the harm (factual causation); and 2. it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

Obvious risk

In paragraph 9 of its Defence, the defendant pleaded that the risk that the plaintiff would be cut by a piece of broken glass upon stepping on it was an obvious risk as defined in s 5F of the CLA. It was then pleaded that the plaintiff was presumed to have been aware of the risk of harm as it was an obvious risk, pursuant to s 5G of the Act and that the defendant did not owe a duty of care to the plaintiff to warn of the obvious risk pursuant to s 5H of the Act.
In my view this defence fails. Of course, the risk that you will be cut by a piece of broken glass if you step on it is an obvious risk. That is what the defendant pleaded. However, the risk faced by the plaintiff was that he might step on a piece of broken glass which he did not see and which he did not have reason to suspect would be under the table. I have found facts on those matters already, in favour of the plaintiff. This is not a case where the plaintiff went ahead and stepped on a piece of broken glass thus accepting the obvious risk of harm. He did not know the glass was there and there was no reason for him to think that the glass was there. It should not have been there. I find that the defence based upon the obvious risk provisions in the CLA fails. This defence was not addressed during submissions by counsel for the defendant.

Damages - Evidence

The entire medical case of the plaintiff consisted of two medico-legal reports from Dr Conrad, a surgeon, who saw the plaintiff for medico-legal purposes only in March 2018; and from Dr Jager, forensic psychiatrist, who saw the plaintiff for an hour in March 2018 for medico-legal purposes.
No material whatsoever was tendered concerning admissions to hospital and operative treatment for the injury to the foot. No material at all was tendered from any treating specialists or any hospitals to which the plaintiff had been admitted, for psychiatric illness. No material was tendered to establish the state of the plaintiff's mental health prior to the January 2014 accident.
Running cases in this fashion is becoming common in the District Court. It does nothing to assist the judge to make findings about medical matters and damages. Reports from medico-legal doctors are only as good as the material given to them. In this case the problem of asking a doctor to see a man for an hour about a psychiatric history that extends over decades is demonstrated by the second last paragraph of the report of Dr Jager dated 27 March 2018, when Dr Jager said to the plaintiff's solicitors: "If you are able to find contemporaneous medical records covering some of the period between the ages of 20 and 55 it would enable me to provide a more complete opinion in the form of a supplementary report."
In spite of that invitation there is no supplementary report from Dr Jager.
Dr Conrad, surgeon, examined the plaintiff on 27 March 2018 for medico-legal purposes. He was obviously given some background medical material as he was able to set out a history of the injury to the foot and the subsequent treatment. The history was that on 15 January 2014 the plaintiff stepped on a piece of broken glass. On 16 January 2014 he presented to St George Hospital with right foot cellulitis. On 17 January 2014 the plaintiff had operative removal of glass from the right foot. On 28 January 2014 he was discharged home with ten days supply of antibiotics. On 30 January 2014 he re-presented to the hospital with right foot cellulitis. Intravenous antibiotics were given. On 14 March 2014 the plaintiff presented to the hospital again for debridement of a right foot ulcer, which was done and the foot was put in plaster.
Dr Conrad also stated: "He says that at the time of the accident he was not working; he has been on the pension for some time, mainly due to underlying schizophrenia, as well as Diabetes."
I do not know whether Dr Conrad was asked to provide an opinion about the plaintiff's fitness for work, or about any connection between the injury to the foot and any unfitness for work. Of course, the plaintiff's assertion was that the injury to the foot directly stopped him from doing painting work. The only thing that Dr Conrad said on this topic was: "As he is on a disability pension he will not re-enter the workforce."
Thus, in the plaintiff's case, there was no expert evidence to support the plaintiff's claim that he could not work as a painter because of the injury to his foot. Even with the limited material he had, Dr Conrad was the logical person to provide such an opinion. He did not.
Dr Jager, a forensic psychiatrist, had a one hour interview with the plaintiff on 13 March 2018. He was given clinical notes and reports from various hospitals. None of those were put into evidence.
Dr Jager was asked what psychiatric condition the plaintiff suffered from at the time of the accident on 15 January 2014. He said that this was difficult, but he was confident that the plaintiff already had Alcohol Dependence. He thought that the plaintiff's Chronic Paranoid Schizophrenia "may or may not have been in remission".
Dr Jager was asked what effect any psychiatric condition had on capacity for work. Again he said that this was "difficult". He said: "His Schizophrenia has contributed to a decline in his ability to undertake the essential activities of daily living. How big that contribution is [is] clouded by the fact that he has also had Alcohol Dependence and a Major Depressive Disorder. His Alcohol Dependence has independently prevented him from undertaking regular paid employment. If one tries to consider his work capacity in the absence of Alcohol Dependence it is likely that he would have had only a very limited capacity for paid employment purely on the basis of the effects of his Schizophrenia."
Dr Jager said that the onset of alcohol dependence was sometime in the plaintiff's thirties. The date of onset of Chronic Paranoid Schizophrenia was at age 20. The date of onset of the Major Depressive Disorder was some time after the accident of 15 January 2014.
Dr Jager was asked what effect the accident had in causing or contributing to each such condition or its aggravation. He pointed out that there was a temporal relationship between the accident and the development of depression. He said that there was a likely temporal relationship between the accident and a re-emergence of symptoms of schizophrenia. He gave no reasons for that opinion. There was no temporal relationship between the accident and alcohol dependence. He said: "There is a paucity of contemporaneous medical documentation for the period prior to the accident which renders my opinion provisional."
No doubt that provisional opinion resulted in the request for contemporaneous medical records, already recited above.
Dr Jager said that the Major Depressive Disorder is in remission and approaching zero. He also said that the Chronic Paranoid Schizophrenia was reasonably well controlled. He was asked what the plaintiff's capacity for paid work was in the light of his conclusions. His entire answer was: "He has no current capacity for paid employment chiefly because of his Alcohol Dependence. I expect him to have no work capacity for the foreseeable future chiefly on the basis of his Alcohol Dependence but contributed to by his remaining psychotic symptoms."
When a forensic psychiatrist cannot disentangle the plaintiff's pre-existing psychiatric conditions from those, if any, caused by the accident, the court cannot either. When that forensic psychiatrist requests the contemporaneous medical material to enable him to offer a more definite diagnosis, and that material is not provided, the court can obtain little assistance from his provisional opinion. There was no explanation provided as to why contemporaneous medical material was not obtained and given to Dr Jager, or tendered at the hearing.
The defendant tendered no medico-legal expert reports.

Assessment of damages

I make the following findings of fact: 1. The plaintiff suffered a penetrating injury to his right foot in the incident at the hotel, which led to infection. 2. The plaintiff had the hospital admissions, operations and treatment summarised by Dr Conrad in his report; 3. By the time of his last visit to Dr Viglione in August 2014, the plaintiff had largely recovered from the problems in his right foot caused by the hotel incident; 4. The plaintiff suffered from diabetes and peripheral neuropathy, including pain in both feet, prior to the incident at the hotel; 5. By August 2014 the pain in both feet caused by diabetes and peripheral neuropathy was so great that the plaintiff was thereafter disabled from working as a painter; 6. The plaintiff has also been disabled from working as a painter since that time by his Alcohol Dependence. In this regard I accept the opinion of Dr Jager; 7. The plaintiff has not proved that any recurrence or exacerbation of his previous schizophrenia is attributable to injuries suffered in the hotel incident; 8. Any depression suffered since the hotel incident has long since ceased.
Non-economic loss has to be assessed under s 16 of the CLA as a percentage of a most extreme case. On the findings I have made the plaintiff's pains and problems caused by the hotel incident were largely over by August 2014. Nevertheless, he had a very torrid time in the first few months with infection. I assess non-economic loss at 15% of a most extreme case, which results in an award of $6,500.
The parties presented two figures for past out-of-pocket expenses. One was predicated upon a finding that the pre-existing psychiatric illness had been exacerbated by the hotel incident. I have found that that was not the case. The other figure therefore applies. The award for past out-of-pocket expenses will be $2,155.30.
Counsel for the defendant presented schedules setting out calculations for the future replacement of insoles every four years and for Endone. On the findings I have made, neither insoles nor Endone are necessary now as a result of any injury suffered in the hotel incident. The need for both arises from the pre-existing condition of diabetes and peripheral neuropathy. There will be no award for future out-of-pocket expenses.
For reasons identified in paragraphs 40 and 46 above, the award for past economic loss will be: $1,167.53 x 30 weeks = $35,025.90.
There is no award for future loss of earning capacity. Any ability of the plaintiff to work has been completely subsumed by his diabetes and peripheral neuropathy, and his alcohol dependence. Further, I find that there is no present interference with his ability to work as a painter caused by the injury suffered in the hotel incident.

Conclusion

My assessment of damages is as follows: Head of Damage Amount Non-economic loss $6,500.00 Past out-of-pocket expenses $2,155.30 Past economic loss $35,025.90 TOTAL $43,681.20

My orders are: 1. Judgment for the plaintiff against the defendant for $43,681.20. 2. Order the defendant to pay the plaintiff's costs. 3. Grant leave to the parties to approach my Associate within seven days if either party seeks a different costs order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 October 2018

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