Varela v Harris Farm Markets Pennant Hills Pty Ltd

LEGISLATION CITED: Civil Liability Act 2002, ss 15(2), 15(3) and 16(2) Evidence Act 1995, s 128(3)

Brady v Girvan Bros Pty Ltd t/as Minto Mall (1986) 7 NSWLR 241 Hampton Court Ltd v Crooks (1957) 97 CLR 367 Harrison v Melhem [2008] NSWCA 67 CASES CITED: Jones v Dunkel (1959) 101 CLR 298 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Roads and Traffic Authority v McGregor [2005] NSWCA 388; (2005) 44 MVR 261 Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104 Sleiman v Franklin Food Stores Pty Ltd (1989) Aust Torts Reports 80-266

PARTIES: Dory Mabel Varela (Plaintiff) Harris Farm Markets Pennant Hills Pty Ltd (Defendant)

COUNSEL: Ms EEJ Welsh (Plaintiff) Mr JE Castaldi (Defendant)

SOLICITORS: Bryden's Law Office (Plaintiff) Colin Biggers & Paisley (Defendant)

1 This is an action arising from an incident which occurred late in the afternoon of Friday, 8 April 2005 when the plaintiff, Dory Mabel Varela, was shopping at a retail fruit and vegetable market at Pennant Hills. As she approached a stand of grapes to make a purchase, the plaintiff slipped on some crushed grapes and fell to the floor allegedly injuring her left knee and back. Her husband, Jose Varela, was called to the scene and he took her to the family's medical practice where she was seen by Dr IB Miller. He diagnosed soft tissue injury from the fall.

2 At the time of the incident, the plaintiff was in partnership with her husband in a business cleaning offices and she herself also did domestic cleaning which were said to occupy her for a total of 30 to 35 hours a week at $25.00 per hour. As a result of the fall the plaintiff was unable to return to the cleaning work for about two weeks and even then claimed to be able only to work for half of the usual time. However, after so working until the end of 2005, the plaintiff from the continuing back and left knee pain, principally in the knee, found her activities were seriously curtailed - she was unable to engage in employment and required assistance for the housework. On 23 October 2006 Dr David Hale, an orthopaedic surgeon, performed an arthroscopy on her left knee at Hornsby Hospital. Due to the continuing pain she has not worked since and receives domestic care from her daughter and niece. She is presently 63 years of age.

3 The plaintiff sued the defendant, Harris Farm Markets Pennant Hills Pty Limited, in negligence for damages arising out of the subject incident. The defendant admitted it was the occupier of the market premises located at Hillcrest Road, Pennant Hills and, as such, had responsibility for the care, management and control of the premises. The particulars of negligence alleged were various but essentially claimed the defendant failed to clean or adequately clean the aisle in the premises so as to allow spilled grapes to remain on the floor, thereby putting the plaintiff in a position of peril; to the extent a cleaning system was in place, it was alleged it was not actually carried out; and although non-slip mats were placed on the floor they had been allowed to move from the area near the grape display thus exposing the hard vinyl floor to spillages of grapes from the angled display cabinet. Damages were sought for non-economic loss, out-of-pocket expenses, economic loss and gratuitous domestic assistance. The total damages claimed was $294,069.05.

4 The defendant denied any negligence to the plaintiff and liability was vigorously resisted. Injury to the plaintiff was denied also and the entitlement to and quantum of any damages were strongly opposed. At most, if liability be found, the defendant conceded as appropriate an award of damages in the total sum of $29,599.05. Contributory negligence was pleaded against the plaintiff for a failure to exercise any care for her own safety against what was said to be an obvious risk.

5 The provisions of the Civil Liability Act 2002 apply to the determination of the plaintiff's claim.

6 The plaintiff was born on 6 March 1945 in Uruguay so that at the date of the incident she was 60 years of age and 63 years at the date of trial. After leaving school in Year 10 equivalent in 1960, the plaintiff was employed as a sales assistant for seven years and then was self-employed for three years. She married in 1972 and moved with her husband to Argentina in 1973 where employment was as a concierge in an apartment building. The family migrated to Australia in 1981 and in 1983 the plaintiff was employed as a room attendant at the Hilton Hotel. In 1984 she obtained work at Concord Repatriation General Hospital doing domestic service, cleaning and sterilizing work but in 1985, while cleaning instruments, she slipped on the wet floor and injured her back; she returned to work on light duties from time-to-time until leaving the hospital in 1994 because of the pain in much of her back. Employment as a cleaner at the Castle Hill Towers Food Court was then engaged in until 1999 when the plaintiff joined her husband in their own business doing cleaning of offices and, for herself, in cleaning domestic premises. That continued to be the position up to the time of the subject incident in April 2005

7 Before the incident, the plaintiff said her health was "perfect" notwithstanding the prior back injury which she said was "fine, I take care of." In his report of 27 June 2007 in connection with the present case, Dr Peter Conrad, a surgeon, said he examined the plaintiff on 26 June 2007 and she advised the prior back injury from the fall at Concord Hospital "quickly settled down…denies any previous knee injuries." But in his report of 29 May 2008 regarding the present matter, Dr Roger Pillemer, an orthopaedic surgeon, said past history from the plaintiff showed "she has had intermittent problems with her low back for over 10 years and she has seen her general practitioner and a specialist about her low back." Also, the plaintiff in cross-examination admitted she could have been referred by her general practitioner, Dr David Tan, to a Dr Bridgeman in May 2000 about osteoporosis for which she was first diagnosed in 1992 - apparently, as she said, treatment for this condition by way of medication was received, as late as 2005, and the symptoms she experienced involved aching bones but it never stopped her doing work

8 Domestically, the plaintiff said she did all the housework before the April 2005 fall, such as cooking, washing and cleaning, and her husband did the maintenance work outside the house, such as lawn mowing. She regularly drove a motor vehicle, even for long distances up to 25 or 30 km.

9 It seemed that on the formation of the business partnership with her husband in 1999 that from the two contracts cleaning offices they each spent about 10 hours a week; in addition, the plaintiff said she herself on domestic cleaning did 20 to 25 hours a week - from the partnership, the plaintiff said she earned about $335 per month, that is, $80 per week; and from the domestic cleaning she earned about $500 per week . In cross-examination, the plaintiff was closely tested on her pre-injury earnings and confirmed them, as stated above, at $500 per week from the domestic cleaning and $80 per week from the partnership, a total of $580 per week. It seems from what she said that the receipt of the earnings was in cash and she did not use bank accounts. However, further cross-examination raised very serious doubts about the source and level of the plaintiff's earnings.

10 The plaintiff's income tax return for the financial year 2004 showed gross income for the year of $248. The income tax returns for the partnership, in which the plaintiff enjoyed a one-half interest, for the 2003, 2004, 2005 and 2006 financial years showed the plaintiff made a net loss of $1,665 in 2003 and for the later three years she made net income of respectively $248, $250 and $20 - the gross income for the partnership over the four-year period ranged from $6,870 to $10,689 but the expenses all but removed any profit; it was admitted that the expenses did not cover wages or payments to the partners but only items such as interest, depreciation and motor vehicle expenses. In his evidence, Mr Varela confirmed that no wages were included in the partnership's expenses and the only reason he kept it going in its unsatisfactory financial position was that "it's my business and I'm waiting for it to improve." Mr Varela otherwise had a full-time job doing domestic carpentry work for which he received regular weekly wages.

11 The plaintiff's oral evidence as to her pre-injury earnings and the information in the taxation returns cannot stand together. In seeking to explain, after the plaintiff was issued with a protective certificate against prosecution pursuant to s 128(3) of the Evidence Act 1995, she said the only work being done at the time of the April 2005 incident was domestic cleaning for a Ms Ingeborg Mertes for which payment was received of $102 per week; after the injury, the work was continued on a reduced basis of $35 per week. A letter dated 22 June 2005 from Ms Mertes to the defendant showed the plaintiff could not work for her after the fall in April 2005 "for a couple of days" and lost income in April, May and June 2005 of respectively $204, $264 and $294, a total for the 12-week period of $762 or $63.50 per week. If one accept the usual earnings rate of $102 per week, that meant the plaintiff was able to earn for that period $38.50 per week with a total of $462. By 19 September 2005 Ms Mertes advised the defendant that the plaintiff was no longer working for her. The plaintiff had not filed a taxation return since the 2004 financial year return.

12 The plaintiff was pressed by counsel for the defendant about her earnings position. Of course, this is an important consideration in terms of the issue in the proceedings of the quantum of any damages, working capacity and credit issues. The plaintiff was twice asked by counsel whether she lied in her personal taxation return and each time said "I reject the question"; as to whether she lied in the partnership returns she said "that's not true"; and on being asked to explain how only $248 was declared in her 2004 taxation return said "I'm not going to answer." Even so, she said she "forgot" about the $100 concerning Ms Mertes and was "mixed up, I'm still mixed up…I apologise"; she then explained that her earlier evidence of earnings of $25 per hour for 20 hours a week was in fact not weekly but monthly. Thus, it would seem that the plaintiff's initial evidence as to pre-injury earnings of $580 per week was wrong and the true figure was around $102 per week.

13 I have to say that I found the plaintiff's evidence on this pre-injury earnings issue to be wholly unsatisfactory to the point of being not credible. One could have little confidence in what, if anything, she actually earned from cleaning work. Her evidence was given in a hesitant and delayed manner with answers tending to confuse the situation by prevarication. For instance, the 2004 taxation return represented weekly income of about $5 whereas she ultimately said she was earning $102. Also, the 2005 partnership return showed the plaintiff had income of $250 ($5 per week) whereas for the 12-week period April to June 2005 she earned $38.50 per week if she be accepted that she earned $102 per week from Ms Mertes.

14 I return to this pre-accident earnings position, but at this point it may be said the plaintiff's evidence as to it did her no credit and conditions how one may properly and reasonably view her evidence on other matters where it is not otherwise confirmed. At the very least, it must be viewed overall with caution.

15 At about 4.00 pm on 8 April 2005 the plaintiff went to the defendant's supermarket to do some shopping. She was wearing black flat leather shoes with a low heel and had a handbag on her shoulder. After selecting a jar of mayonnaise, the plaintiff approached the fruit displays and as she moved towards the stand of grapes about one to one and a half metres away what occurred was described to this effect:

"I slipped and fell. My left foot slipped. Hit ground with left knee and then fell backwards…fell sitting down and hit my back…left knee had terrible pain…whole body in pain because of impact. I was on the floor for 10 to 15 minutes. Then saw three, four or five grapes, some squashed…left shoe wet with grape."

16 A customer incident report completed for the defendant by a staff member, later identified as the supervisor on the day of the fall called "Melanie" but who had since left the employment, described the plaintiff's and the defendant's versions of the events as follows -

Plaintiff's version: "Shopping in the store then she slipped on a grape which was on the floor."

Defendant's version: "Young children dropped grape skins on the floor and the lady slipped on them. At the time Simon and Paul were sweeping the floor. 3 mat on floor."

17 The report stated "Joe Pace" gave assistance by providing a chair and a glass of water. The floor was noted on the report as being inspected by "Oliver Nikjic" and that its condition before the incident was stated as being "clean with 3 mats" and after the incident as "still clean." The report stated injury as "sore left knee." The time of the injury was shown as 4.10 pm on 8 April 2005.

18 The plaintiff said the floor was vinyl with mats under the fruit boxes protruding about 20 cm. She said she shouted for help and a customer went to her aid; a cleaner arrived later. Eventually, other staff arrived at the scene and took the plaintiff to the office where she spoke to a man, who identified himself as the boss or manager; she said to him "the floor was dirty with grapes"; and she said he responded "Yes, it's obvious it was dirty." The plaintiff said she noticed immediate pain in her left knee and back, then left the premises when her husband arrived and attended Dr Miller. She said she was unable to work for two weeks and returned for half the usual hours because stairs could not be negotiated and bending was not possible. The plaintiff repeated her earlier evidence that the week before the fall she worked total weekly hours of 20 by herself and 10 with her husband earning $25 per hour in the cleaning of two offices and three houses. That continued to be the position until the end of 2005 but thereafter the plaintiff was unable to work with her back and left knee problems.

19 After the fall, the plaintiff said she experienced "plenty of pain" and "could not walk quickly or swiftly"; she received assistance in the home on domestic duties from her niece and daughter. Even after the arthroscopy to the left knee in October 2006 it was still sore and she could not do other than light housework or cleaning work.

20 Although taken by her husband a long time after the incident, coloured photographs of the relevant area in the supermarket were admitted into evidence which showed the fruit stands, the blue-green vinyl floor and the non-slip mats. The photographs assisted in a better understanding of the area in which the fall occurred and the facilities.

21 Curiously, it was suggested to the plaintiff that she returned to do some cleaning work in 2007 but she said "not that I remember." However, a letter dated 16 August 2007 from her solicitors to the defendant's solicitors, the contents being agreed by her, stated that the plaintiff "also attends with her husband at these premises once a week to perform very light work limited to ironing…for only about 40 minutes to 1 hour on that day…once per month the plaintiff also attends another domestic residence at Eastwood…very light cleaning work as well as ironing for 2 hours." Nevertheless, the plaintiff tended to resist suggestions she worked with her husband and said she only went with him but "not to work…perhaps I assisted with ironing for an hour." This evidence, as I viewed it, added to the doubts about the credibility of the plaintiff's evidence in terms of her work capacity after the fall.

22 Jose Varela, the plaintiff's husband, gave evidence and spoke of the work arrangements he had with the plaintiff in the partnership business; although unaware of the hours, he knew his wife did domestic cleaning. Before the April 2005 incident he said his wife was in pain from the 1984 injury to her back which prevented her from doing some of the cleaning work but that she had improved and did the lighter work such as taking rubbish away and moving boxes. On the domestic side, the plaintiff did most of the housework but he helped. After the 2005 fall in the supermarket, Mr Varela said, his wife complained of pain - she said "don't move, don't touch me" - and she could not cook, wash clothes or iron so that his niece, Natalia Cullen went to the house to stay to do the domestic chores. Ms Cullen, although having now left, returns once a week to do housework.

23 Ms Cullen, who lived with her aunt and uncle for six months in 2001 until she married and had a family, still regularly visited to see the plaintiff. She said the plaintiff did the housework before the 2005 fall and her uncle only ever did the gardening. After the fall, Ms Cullen said the plaintiff was obviously in pain with the injured knee and the condition of the house became such that she started to do the housework - before, it was always spotless. The tasks performed by Ms Cullen, done twice weekly for about four or five hours on each occasion, covered cleaning the bathroom, clothes washing, vacuuming, mopping, cleaning kitchen and toilet and making beds; after Ms Cullen herself returned to employment in March 2006 she did the housework at the plaintiff's house once a week for four hours. To her observation, the plaintiff was now restricted in walking - "can't walk as fast or as far…can't move in the same way…pain in back…can't bend or carry things."

24 The plaintiff's daughter, Jesica Perez, who was married and lived with their child near to the plaintiff, said that in the years before the 2005 fall her mother had "a bad back, it was fragile." She said the plaintiff did the majority of the housework, helped by her father. She was aware the plaintiff had osteoporosis and took her for treatments. From having a high energy level before her 2005 fall, afterwards the plaintiff became depressed and was "not herself." Ms Perez said she then assisted by visiting her parent's house twice a week to make beds and do the cleaning of kitchenware; she also drove her mother to the shopping centre once or twice a week which took two to three hours; and at night she made dinner for her parents at her own home but which did not involve a lot of extra time. In the house, Ms Perez said her mother wiped benches, dusted, mainly sat on the couch, made tea and coffee and helped prepare meals from time-to-time.

25 In the defendant's case, evidence was given by the then manager of the Pennant Hills store, Joe Pace. He said he was at work on 8 April 2005 but had no particular recollection of the incident concerning the plaintiff even though, as previously noted, the incident report showed that he provided assistance to her with a chair and a glass of water. He seemed to remember a lady fell on some grapes but beyond that had no independent recollection. As the manager, it was his task to make sure things were done in the store and he supervised on the Friday night in question (Fridays were always busy after 4.00 pm) seven or eight male stackers (called "boys") and eight or nine females (called "girls") on the cash registers; one cleaner was employed to patrol the premises and keep them clean and tidy. Oliver Nikjic, who the incident report stated inspected the floor after the plaintiff's fall, was the assistant manager.

26 Mr Pace outlined the cleaning procedure in force at the store at the time of the plaintiff's fall. The "boys" moved around the area regularly keeping it clean. The system required "sweep and mop checks" to be completed every quarter of an hour and the employee concerned, either one of the boys or the girls, was required to initial or sign a sheet indicating that that job had been done - the check sheets for 8 April 2005 were admitted into evidence and they showed the checks had been signed off as having been done in the period around` the time of the plaintiff's fall, except no entry on the "boys" sheet was made for the 4.45 pm timeslot but the "girls" sheet was complete. The completed sheets, according to the system, were sent to the defendant's head office for review. Also, the system involved random checks by managers of the defendant visiting the store at unannounced intervals once or twice each day to ensure that it was presentable and clean. Mr Pace said, by reference to the photographs, that the mats were positioned in the aisles in front of the fruit and vegetable stands about 6 inches apart.

27 Significantly, and perhaps strangely having in mind his presence at the store on the day and his supposed direct involvement with the plaintiff, Mr Pace said he had not before seen the subject incident report which he recognised from the handwriting had been completed by the former supervisor, Melanie. The other persons named on the report - the cleaners at the time, Simon and Paul, and the assistant manager, Oliver Nikjic (still employed but at another store) - were not called to give evidence and no explanation for that omission was given. There was no evidence of any investigation of the subject incident following the review of the incident report.

28 The final witness for the defendant was Robert Tressider who was engaged by the defendant as a consultant to oversee the defendant's procedures for store maintenance, including sweeping and mopping systems, and to follow up people who had accidents in stores; he visited the stores on a regular basis to ensure compliance with the system and reviewed the incident reports. The subject report was reviewed by Mr Tressider on 26 April 2005 and thereafter he contacted the plaintiff on a number of occasions to offer financial assistance with her medical expenses and to talk about the incident concerned. The then existing cleaning system had been introduced during 1999 or 2000.

29 Mr Tressider said the plaintiff told him she had severe pain in the left knee and could not do her former cleaning work because of the injury.

30 The medical evidence in the case was not extensive. It is clear from a report dated 16 May 2000 from Dr Margaret Bridgeman, an endocrinologist on referral from Dr Tan, that the plaintiff was first found to have osteoporosis in 1992 and was provided with treatment. A consultant endocrinologist, Dr Bronwyn Crawford, provided a report to Dr Tan on 31 May 2005 having reviewed the plaintiff on that day. It seems that the plaintiff was last seen in the osteoporosis clinic of Concord Hospital in 2001. In May 2005 Dr Crawford said the plaintiff complained of aches in her bones most of the time. As to the position with the earlier back injury, Dr Crawford reported an x-ray of the thoraco-lumbar spine was "normal with no evidence of vertebral height reduction"; medication was provided for the back pain still experienced by the plaintiff with a plan to review her in six weeks.

31 As I have said earlier, Dr Miller in a report of 13 December 2006 said the plaintiff was seen once on 8 April 2005 after her fall with "swelling and some bruising over her left patella and was tender there." Diagnosis was of soft tissue injury.

32 Dr Tan provided a report dated 14 April 2008 as the plaintiff's general practitioner, having first seen her for the subject injury on 26 April 2005 and with consultations from time-to-time thereafter until last seen on 31 July 2006. Other doctors in the practice saw her regarding the knee problem up to 21 November 2006 when Dr Hale performed the left knee arthroscopy a month earlier. Over the period of the consultations, Dr Tan reported the plaintiff's complaints of lower back pain, left hip pain and painful left knee.

33 Dr Hale in a report of 21 February 2007 said he reviewed the plaintiff on 15 November 2006, after the arthroscopy was performed on 23 October 2006, and reported she was recovering well albeit with some understandable knee pain. He had not since seen her. He stated: "The fact that she has not returned for further follow-up would suggest that there are no significant residual symptoms but there is a possibility of further meniscal tears occurring in the future and she is predisposed to developing degenerative change in the future. She may also encounter some anterior knee pain arising from the patellofemoral joint with activities such as walking up and down stairs, squatting and kneeling, particularly if she is not diligent in her home exercise program.

It is anticipated that she should be fit to return to her pre-accident employment." 34 Overall, Dr Hale thought the prognosis was good but there was a possibility the plaintiff will require repeat arthroscopies in the future. There was approximately an 80 to 90 per cent chance that the result will still be satisfactory in 10 years' time.

35 Dr Conrad was qualified by the plaintiff's solicitors to assess her and he did so on 26 June 2007 and 22 January 2008. It is noteworthy that in neither of Dr Conrad's reports of 27 June 2007 and 23 January 2008 is there any reference to the plaintiff having advised him of the osteoporosis she had had since 1992 or the back injury in 1985. In taking a history, Dr Conrad noted the plaintiff said before her injury she did casual domestic cleaning for six hours per week, which is consistent with the plaintiff's eventual evidence that she worked 20 to 25 hours per month, but his notation that she ceased working shortly after resuming work about two weeks after the incident is inconsistent with the plaintiff saying she worked, albeit for half the time, until the end of 2005. Also, Dr Conrad said in his first report that the plaintiff continued to see Dr Miller, not Dr Hale, but that does not fit with Dr Tan saying she had not seen any doctor in the practice since 21 November 2006.

36 In the second report of 23 January 2008, Dr Conrad said the plaintiff's condition continued unchanged since last seeing her. He expressed the opinion:

"This lady was involved in a fall at Harris Farm Fruit Market at Pennant Hills. As a result she sustained a lumbar back strain and has ongoing back pain with left-sided sciatica. She injured her left knee and both the lateral and medial menisci were ruptured resulting in a partial meniscectomy by Dr Hale for each menisci. She now has considerable superadded arthritis, as indicated by the considerable crepitations present and should the arthritis progress, then on the balance of probabilities, she will need a partial of total knee replacement within the timeframe of five to eight years at a present day cost of approximately $18,000."

37 Relevantly, particularly having in mind the plaintiff's evidence of not being able to work because of the injury, Dr Conrad noted she "continues doing a light casual cleaning job for about one-and-a-half hours per week." He considered she would be able to do this provided there was no heavy lifting, repetitive bending, squatting or kneeling and heavy industrial vacuum cleaners or polishers were not used. Dr Conrad thought domestic assistance should be provided to the plaintiff of some six hours per week. He thought the prognosis for recovery was poor and assessed a 25 per cent permanent impairment of the back and 30 per cent permanent loss of efficient use of the left leg at or above the knee. Given, as Dr Conrad said but not consistent with the true position, "there is no evidence of pre-existing degenerative disease or previous accidents…therefore this impairment and loss relate directly to the accident of the 8th April 2005."

38 In a report dated 8 July 2005 of a CT scan to the plaintiff's lumbo-sacral spine sent to Dr Tan by Dr Shane Connolly, degenerative changes were found to be present. In conjunction with the osteoporosis condition since 1992 and the back injury at Concord Hospital in 1985, the opinion of Dr Conrad needs to be treated with caution.

39 Dr Pillemer provided a report dated 29 May 2008 to the defendant's solicitors after examining the plaintiff that day. He reported her general health as good, although with blood pressure problems and "reflux." Again, like with Dr Conrad, there was no reference to the pre-existing osteoporosis nor to the 1985 back injury. Also, Dr Pillemer reported the plaintiff as saying "Initially…prior to her injury she was working 10 hours a week but later she informed me she helped her husband with his two contracts which he apparently subsequently lost." Dr Pillemer recorded also a history of the plaintiff stopping cleaning work in mid-2006 because of the symptoms from the injury in April 2005 in which he said "she claims to have injured her left knee and her low back and has had ongoing problems since then." After a clinical examination, Dr Pillemer concluded a diagnosis of "an aggravation of a longstanding problem with her low back" and injury to the "left knee at the time of the fall…no significant clinical findings at the present time…she has developed similar symptoms in her right knee." The right knee problems would seem, I would add, to have been mentioned for the first time. Dr Pillemer thought there was "a significant functional component" in the plaintiff's condition.

40 Dr Pillemer made the following comments: "You note that Ms Varela is claiming 17 hours per week from the day of the incident and continuing. In my opinion there is a significant maximisation of her claimed disability, noting that she was in fact able to get back to cleaning for a considerable period of time following her injury. In my opinion she does not require domestic assistance at this stage as a result of her fall on 8 April 2005.

As noted, Ms Varela claims to be significantly disabled and only able to negotiate stairs one at a time and very slowly and do a minimal amount of shopping, and in my opinion indirect observation would show her to be capable of far more than she claims at this stage."

41 There was no issue at trial that the defendant as the occupier of the premises did not owe the plaintiff a duty of care. I think that concession to be correct. In terms, the duty is for the occupier to use reasonable care to prevent injury to the invitee (here the plaintiff as a customer) from an unusual danger of which the occupier knew or ought to have known: see Brady v Girvan Bros Pty Ltd t/as Minto Mall (1986) 7 NSWLR 241 per Kirby P at 243, Priestley JA at 249 and McHugh JA at 250. As Priestley JA explained (at 249) as to the nature of the duty in relation to spillages in a large and busy shopping mall: "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 the 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 give rise is to have such a system of watching for the happening of (inter alia) spillages as will enable them to be removed promptly after their occurrence."

42 It was in the present situation that the defendant mounted its case against liability on the existence of a proper system which it had in place to watch for spillages on the floor and to clean them within a short timeframe of the occurrence. The evidence of Mr Pace and Mr Tressider, as earlier summarised, was relied upon as satisfying the test for a proper system as formulated in Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104 where Handley JA, with whom Priestley JA agreed, said (at 68,942): "In my opinion an occupier cannot reasonably be expected to prevent material being dropped in areas being used by the public. Nor can an occupier be expected to remove material the instant it is dropped. What can be expected is that a system will exist for routine inspection and cleaning of busy high-risk areas during the times they are in use by the public. It can also be expected that dropped material coming to the notice of staff will be reported immediately and that one or more staff members will be available to take prompt action to remove the material."

43 In approaching the critical issue of whether the duty of care had been breached in any particular case, Handley JA in Shoeys (at 68,942) affirmed that "the mere presence of material on the floor, which causes an accident, does not establish a prima facie case": see also Sleiman v Franklin Food Stores Pty Ltd (1989) Aust Torts Reports 80-266 per Clarke JA at 68,835. In that respect, his Honour (at 68,943) applied the principles stated by Dixon CJ in Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371, as follows: "…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 ... 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 of 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."

44 Here, the evidence of the plaintiff was clear that although she was not looking at the floor at the time, not surprising as one moves around a shop looking at goods displayed, she was keeping an eye in front of her and looking at the grapes on the stand. The fall occurred about one to one and a half metres from the stand on the hard vinyl floor where a few grapes on the floor had been crushed - that suggests the grapes had been there for some little time at least and had been trodden on by other customers. The plaintiff, after the fall, noticed the mats were not positioned where she fell but were under the fruit stand protruding about 20 cm - that suggests the mats had been out of position, again for some little time at least, after having been moved by customer traffic. That evidence from the plaintiff, which I accept, raises two issues of relevant omission by the defendant: first, a failure to clean a slip hazard from the floor in a reasonable period of time; and, second, a failure to re-position the mats to obviate fruit falling or being dropped onto a hard floor area causing a slip hazard. As McHugh JA observed in Brady (at 255): "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."

45 Mr Pace agreed the defendant's shop was busy and it had five or six checkouts operating at the time. Product was re-stocked in the stands from about 3.00 or 4.00 pm on a Friday, the day of the accident to the plaintiff, in preparation for weekend trading and that involved staff wheeling trolleys of product around the aisles - he agreed mats were therefore moved and pushed under the display stands. The plaintiff said other customers were present around her at the time. In that situation, I think the defendant was required, in order to exercise reasonable care, to have a system of almost constant inspection to ensure the aisles in the premises had clean floors, were clear of obstacles and non-slip floor mats were appropriately positioned.

46 The issue then becomes whether the defendant had the necessary cleaning system and that it was in operation at the time of the plaintiff's accident. The evidence of Mr Pace and Mr Tressider satisfies me that such a system had been laid down by the defendant and, indeed, the role of Mr Tressider in attending to the condition of the defendant's various premises shows a concern in avoiding foreseeable risks for its customers. The incident report and review procedure by Mr Tressider, together with the sweep and mop check sheets for recording inspections of the premises by cleaning staff at quarter hour intervals, emphasises this. However, whether that system was actually in place and functioning as it was intended around the time of the plaintiff's fall is quite another question. I do not think it was.

47 Mr Pace had neither any independent recollection of what occurred to the plaintiff nor had he seen the incident report which had been completed by "Melanie" as the supervisor who sent it to head office for review by Mr Tressider. But there was no evidence, certainly not from Mr Tressider, of the results of that review or of any investigation or action taken to obtain details of the effective operation of the cleaning system at the time of the plaintiff's fall. There was no evidence as to those matters from Melanie or from the cleaners on duty at the time, Simon and Paul, or from Oliver Nikjic who inspected the floor after the incident. As to the sweep and mop check sheets at the relevant time around 4.00 pm on 8 April 2005, Mr Pace could not identify who initialled or signed them.

48 In the circumstances, I consider this case to be one in which it is appropriate to apply the principles in Jones v Dunkel (1959) 101 CLR 298 by inferring that the evidence from Melanie, Simon and Paul and Oliver Nikjic would not have assisted the defendant's case. That is, I infer that if such evidence had been called (there was no explanation for the failure to do so) it would have disclosed, to use the words of Handley JA in Shoeys (at 68,943 - 68,944), "that the defendant's cleaning system itself was negligent or that he had failed that day to carry out the system."

49 In the result, I infer, and find accordingly, that the defendant was negligent in the happening of the fall to the plaintiff which thereby caused her injury. Specifically, I am not satisfied that the defendant has shown that the regular sweep and mop checks had been carried out at the relevant time or that the non-slip mats were properly positioned so as to avoid slip hazards.

50 The defendant pleaded contributory negligence by the plaintiff but neither in the written nor in the oral submissions of its counsel was the defence advanced. It was not until counsel for the plaintiff sought no finding in this respect that the defendant's counsel simply said that it was still pressed but without any supporting submissions. I think the omission to actively advance the contributory negligence claim was correct. I find no contributory negligence. The plaintiff was in the premises of the defendant in the ordinary course of shopping. As stated above, the defendant had a duty to take reasonable care to prevent injury to the plaintiff but failed to do so either by the cleaning system it had in place or in failing to ensure the system actually was operating at the time of the incident. In determining contributory negligence a comparison has to be made both of culpability and of the relative importance of the acts of the parties in causing damage: see Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494. What occurred here, in my view, was solely attributable to the defendant. The defence of contributory negligence is dismissed.

52 As to non-economic loss, the defendant's primary position was based on Dr Pillemer's report, which was submitted should be preferred over that of Dr Conrad, for an assessment of less than 15 per cent of a most extreme case so that under s 16(2) of the Civil Liability Act no damages could be awarded. In the alternative, it was put that the appropriate measure of damages would be in the range of 16 to 20 per cent of a most extreme case. For the plaintiff, the appropriate assessment was 28 per cent of a most extreme case.

53 I think it may be undoubted on all of the evidence that the plaintiff sustained in the subject incident an injury to her left knee and an aggravation to the pre-existing condition in her lumbar back. The severity of the knee injury is manifest from the view expressed by Dr Hale and of the need to perform the arthroscopy in October 2006. However, in considering non-economic loss I think it important to view the evidence of the plaintiff herself.

54 The plaintiff said she enjoyed good health before the incident and, notwithstanding her osteoporosis and ongoing back problems from the 1985 workplace injury at Concord Hospital, was able to do the casual cleaning work and domestic duties at home. After the accident, traumatic as it was, she was only able to work for half of her usual hours until the end of 2005 when, on her evidence, she had to cease work because of the left knee problem. Although not claiming to be a cripple, she was severely limited in her activities, suffered some depression and needed assistance with most of the domestic duties from her husband, daughter and niece. In all of this, I think one has to separate carefully the effects of the April 2005 injury from the ongoing effects of the osteoporosis and back injury. Unfortunately, in giving his opinion Dr Conrad was unaware of the osteoporosis but which the plaintiff said caused her bones to ache most of the time as advised to Dr Crawford; also, Dr Conrad understood from the plaintiff that the back condition had quickly settled down whereas the evidence of the plaintiff was that it in fact continued to be a problem from time-to-time and her daughter, Ms Perez, said the plaintiff had a fragile bad back. On clinical examination, Dr Pillemer noted the low back problem.

55 I formed the view of the plaintiff that she endeavoured to maximise her condition as relating to the subject incident and the effects on her working and family life. I am not satisfied it had the consequences she claimed. Certainly, there was no evidence to support the claimed depression in her mood. She sustained an injury to the left knee in April 2005 at the defendant's premises and it is that injury which is presently relevant. As Dr Hale said, her failure to follow up treatment suggested there were no significant residual symptoms and she should be fit to return to her pre-accident employment; overall the prognosis, he said, was good but with a possibility of the need for repeat arthroscopies in the future. It is significant too, I think, that Dr Pillemer noted on clinical examination that the plaintiff had a full range of knee movements bilaterally, albeit accompanied by some crepitus but with no fluid in the knees which were stable.

56 I assess, in the circumstances, non-economic loss at 20 per cent of a most extreme case, that is, $15,500 being 3.5 per cent of the maximum of $442,000 pursuant to s 16(2) of the Civil Liability Act.

57 Past out-of-pocket expenses were agreed in the amount of $4,057.05.

58 As to future out-of-pocket expenses, the defendant resisted any allowance because, as it was submitted, there was no evidence of a future plan for treatment required. For the plaintiff, her counsel suggested a buffer of $15,000. It was conceded that there was no direct evidence going to this issue, other than the plaintiff saying she took Neurofen for pain on a regular basis. Also, Dr Conrad had foreshadowed with the development of arthritis in the left knee a probable need for surgery, which may be in the form of a knee replacement, within five to ten years at a present cost of $18,000. Of course, as earlier stated, Dr Hale thought there to be a possibility for repeat arthroscopies to the left knee.

59 As indefinite as the evidence may be on this element of future expense, I think some provision should be made for it on the basis of the views of Dr Hale and Dr Conrad of surgery in five to ten years' time. The plaintiff herself had always followed medical advice. A buffer is the appropriate approach. I allow $10,000.

60 In the state of the plaintiff's evidence, as affected by the documentary material of the income tax returns and the letter from Ms Mertes, the assessment of economic loss is a difficult task; but an attempt must be made. As to the past, it was submitted for the defendant that at best $762 should be allowed for the months of April, May and June 2005 having in mind the advice from Ms Mertes; in the absence of evidence, nothing for the future should be allowed. The plaintiff's counsel sought $16,900 for the past based on an earnings loss of $100 per week and $26,299 for the future based on a weekly loss of $100 to age 70 years.

61 I have earlier found the plaintiff's evidence on the pre-injury earnings issue to be wholly unsatisfactory and not credible so that one could have little confidence on what she actually earned. Therefore, one looks to other evidence of what the position probably was in assessing the earnings loss from the injury date to the date of judgment. As the defendant's counsel put, the only reliable source was the information from Ms Mertes of lost income of $762 in the 12-week period from April to June 2005. The income tax returns are highly suspect as to their accuracy, particularly where the plaintiff expressly declined to confirm of otherwise the contents of them.

62 On the plaintiff's ultimate evidence, she said she was earning $100 per week from both the domestic cleaning for Ms Mertes and the office cleaning in partnership with her husband. His evidence was very non -specific on this but, given he and his wife shared the work, he did say it involved about three hours a week at two establishments which would mean the plaintiff worked for about one and a half hours - it was far from clear whether that was on a regular basis week after week and the partnership taxation returns would seem to confirm that it was not. However, I think the taxation returns represented a gross understatement of what the plaintiff's earning position was. On the other hand, her claim of $100 per week pre-injury was also, I think, a gross overstatement. The reality as to the plaintiff's work, doing the best I can on an overall view of the evidence, is that she worked for two or three hours a week doing the casual cleaning and returning an amount of $50 per week when she did so - it was very much, in my view, an ad hoc approach where she earned "pin money" by working for Ms Mertes from time-to-time and assisting her husband as convenient.

63 After the injury in April 2005, the plaintiff, understandably, was absent from any work for two weeks then returned on a half-time basis until the end of 2005 when she said she ceased work. On the medical evidence, I think she retained at that time and into the future a capacity to work for at least two hours a week so that, at most, her loss after the initial two weeks absence was one hour a week at $25 per hour.

64 Therefore, for the first absence of two weeks I would allow a loss of $100 and thereafter $4,200 being $25 per week for 168 weeks to date; the total is $4,300 reduced by 15 per cent to recognise the ad hoc nature of the work. The resultant amount is $3,655 for this component of past economic loss.

65 The assessment of future economic loss may, I think, reasonably be approached as a continuation of the reasoning for the past. The calculation should be made to normal retirement age of 65 years. The result is an amount of $2,112.25 ($25 per week with 5% multiplier of 99.4 less 15% for vicissitudes, including ad hoc nature of the work).

66 The plaintiff claimed past gratuitous domestic assistance of $37,180 based on 10 hours per week at $22 per hour. For the defendant, $6,210 was suggested of three hours per week at $23 per hour for the period from the date of the injury to 31 December 2006 to allow for the period up to the arthroscopy on 23 October 2006 and a reasonable recovery period thereafter.

67 Section 15 of the Civil Liability Act sets the conditions and parameters for this component of gratuitous domestic care; sub-s (2) provides the criteria for the need; and sub-s (3) lays down the time threshold for the provision of the care. It is to be noted that the statutory thresholds under s 15(3) have been met in the present case where the services were provided for at least six months notwithstanding they may have been less than six hours per week: see Harrison v Melhem [2008] NSWCA 67 which overruled Roads and Traffic Authority v McGregor [2005] NSWCA 388; (2005) 44 MVR 261.

68 It is clear from all of the evidence that before her injury in April 2005 the plaintiff performed the domestic duties for her household. After the injury, she said she could do only light housework and received help from her husband, Ms Cullen and Ms Perez - Mr Varela started to do the laundry work and Ms Cullen and Ms Perez spent respectively about four hours a week and two to three hours a week providing care on duties previously performed by the plaintiff. Dr Conrad estimated care of six hours per week was needed but Dr Pillemer, as at May 2008, did not consider any domestic assistance was required even though the plaintiff initially after the injury claimed 17 hours a week.

69 The defendant, very fairly and properly in my view, conceded past care from the date of injury to December 2006 was needed. I think the concession was reasonably made. However, like other evidence in these proceedings, I think the claim of 10 hours per week was exaggerated having in mind the real condition of the plaintiff which, in my view, enabled her to do a lot more than she said. I assess for the past an amount of four hours per week.

70 The calculation for past domestic care gives a sum of $15,640 being four hours a week at $23 per hour for 170 weeks.

71 As to future domestic care, again I think the claim is exaggerated, particularly having in mind Dr Pillemer's views, which I found to be cogent, and those of Dr Conrad who thought six hours per week appropriate. In any event, into the future for the plaintiff's life expectancy the pre-existing conditions of the osteoporosis and back injury will have their effects and some discounting is necessary to restrict any award to services relating to the subject injury in April 2005.

72 The defendant considered no award should be made for this component but, at most, one hour per week could be allowed at $23 per hour for life and deducting 15 per cent for vicissitudes giving a sum of $9,820. For the plaintiff 10 hours a week, alternatively five hours a week, at $22 per hour was claimed for the plaintiff's life expectancy less 20 per cent to account for the pre-existing conditions giving amounts respectively of $132,633 and $66,316.

73 I assess future domestic assistance on the basis of two hours per week at $23 per hour for the life expectancy of the plaintiff of 25 years at $17,332.80 ($46 per week with 5% multiplier of 753.6 less 50% for vicissitudes, including pre-existing injuries).

74 In summary, the damages to be allowed the plaintiff comprise the following elements - non-economic loss of $15,500; past out-of-pocket expenses of $4,057.05; future out-of-pocket expenses of $10,000; past economic loss of $3,655; future economic loss of $2,112.25; past domestic assistance of $15,640; and future domestic assistance of $17,332.80. The total sum is $68,297.10.

75 The plaintiff is entitled to a verdict against the defendant in the amount of $68,297.10.

76 I will hear the parties on costs before making final orders.

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