Vourvahakis v Marrickville Metro Shopping Centre Pty Limited

Judgment 1HIS HONOUR: There is in the Sydney suburb of Marrickville a shopping complex known as Marrickville Metro. That shopping complex has been referred to as a shopping centre, although it is more like the traditional shopping mall described by Kirby P, as his Honour then was, in Brady v Girvan Bros Pty Ltd t/as Minto Mall (1986) 7 NSWLR 241. 2From such evidence as has been given, it would appear that this shopping complex, to which I shall refer hereafter as either the "shopping centre" or the "centre", comprises a series of shops in one building on the ground floor with the roof of that building being a car park. From exhibit 14, an aerial photograph, it appears that on part of the rooftop car park has been constructed a higher level car park over what would be less than one-quarter of the total area of the rooftop car park. 3It is an agreed fact that this centre opened in 1987. The identity of the original owner, the architects or the builders of the centre has not been given in evidence. The identity of those who may have chosen materials to be used in the construction of the centre has not been given in evidence. The evidence concerning the history of the centre is that the current first defendant purchased the centre from Bevillesta Pty Ltd on 13 October 2004. The original name of the first defendant was AMP Marrickville Pty Ltd and is so described in the transfer from Bevillesta Pty Ltd to it. But, antecedent to that transfer, the name of the transferee was changed into the name of the current first defendant. However, that name change would not appear to have been operative prior to or at the date of transfer. The change of name of the first defendant was subsequently registered with the Registrar-General on 29 June 2005. 4The current first defendant remains the owner of the shopping centre. In the amended statement of claim, upon which the plaintiff relies, it is alleged that the first defendant was the occupier of the Marrickville Metro Shopping Centre at Marrickville, and that is admitted by the first defendant. Accordingly, at least since 13 October 2004, it would appear that the first defendant has been the owner and occupier of the shopping centre. 5On 13 February 2008, the plaintiff visited the shopping centre. She drove her vehicle onto the rooftop car park and parked her vehicle there. She then walked towards the entrance to the shops, an entrance which, I infer, was the access to either lifts and/or travelators which took her from the rooftop car park down to the ground floor where the shops were. As she was walking across the car park toward the entrance to the shops the plaintiff tripped and fell. She alleges that as a result of that fall she sustained personal injury. The plaintiff brings an action for damages for those personal injuries. The plaintiff's claim is in the tort of negligence. The plaintiff's action is governed by the provisions of the Civil Liability Act 2002. 6The second defendant is a contractor to the first defendant. Exhibit R is a letter from the first defendant to the National Operations Manager of AMP shopping centres. Exhibit 12, inter alia, contains a list of "AMP shopping centres" in the Commonwealth of Australia. There are AMP shopping centres in New South Wales, in Queensland, in Victoria and in Western Australia. The AMP shopping centres in New South Wales are Dapto Mall, Riverside Plaza, the Macquarie Centre, Auburn Home Megamall, Crossroads Home Centre, Glenmore Park, Marrickville Metro, the Palms at Coffs Harbour, Royal Randwick, Northbridge Plaza, Warringah Mall, Mosman Village, Junction Fair, Cessnock Plaza and Wattle Grove. There are three, or at least in early 2008, there were three shopping centres in Queensland, three in Victoria and three in Western Australia. 7The letter from the first defendant to the second defendant of 10 September 2007 is in fact an offer containing a self-encomium of the second defendant to the first defendant. It is necessary to consider the letter in order to ascertain the nature of the relationship between the first and the second defendants. The third paragraph of the letter is this: "We are not average security, safety, emergency, or environment auditors/consultants and we do not actively seek that level of work. We are genuinely a very high level corporate strategic resource; we operate as if we are part of your internal organisation, not external consultants." The succeeding paragraph is this: "Our strength is in our ability to thoroughly assess the issues; the controls currently in place, to understand the needs of the organisation and make recommendations that are applicable to the type of business, property, owners and the risk exposures. We are in the business of providing genuine help to directors and managers in the most cost effective and diligent manner." The second defendant then gives itself ten descriptors. The first and third of those descriptors are: · Specialists in Strategic Risk Management. · Specialists in Environment, Health and Safety. The second page commences with a heading, "The AMP Shopping Centre Project Proposal". The matter next occurring is this: "A senior InteRisk specialist resource will be allocated to oversee the implementation of the Environmental Health and Safety (EHS) programs of your shopping centre portfolio for the contract period." There are then listed ten "key aims of the process". The first, third and fifth of those "key aims" are these: · Assist the centre management teams with the implementation of Safety systems and operational objectives. · Provide a review and Audit function reporting back to the National Operations manager. · Assist with the reporting and registration of Incidents, Accidents and investigations. Page 3 purports to be an "outline of some facts" to be considered by the addressee. There are then listed nine "facts". The sixth of those facts is this: "We have already developed, reviewed and implemented a huge number of operational and business procedures and processes; they would be available to you and would only require minor tailoring to suit the AMP portfolio if needed. These include: · Engineering and maintenance procedures. · Crisis/Emergencies/Escalation and Security procedures. · Occupational Health and Safety procedures. · Operational Environmental standards. · Training Packages targeting Engineering and Operations staff." The final page contains a position description, an overview of duties, the experience of the person to be appointed to the position and the fee to be charged each year by the second defendant. The position description is "Risk Manager (Under the supervision of Senior Risk Management specialist)". The overview of duties includes this opening statement: "Total management of the development of systems, procedures and processes." There is then a heading "Management" and beneath that a number of areas to be "managed". They include occupational health and safety, reporting and auditing, and "environmental". The person to be appointed to the position was required to have more than five years' experience as a risk manager, and the annual fee to be charged by the second defendant was $130,000. However, that fee did not include goods and services tax, travel, accommodation and business phone expenses. 8As the case has been presented and argued, it would appear that the offer made by InteRisk to "AMP shopping centres" was accepted and, inter alia, a "risk manager" was appointed to the AMP shopping centres in Australia. The person who occupied that position, I infer from the date of the appointment of InteRisk until some time after the plaintiff's slip and fall, was Mr William Thomas Dash, who was known to all as Billy Dash. 9Mr Dash had commenced the InteRisk Pty Ltd in 2003. He has an applied science degree in occupational health and environmental health. Exhibit 12 contains a schedule for Mr Dash to visit each of the AMP shopping centres in the Commonwealth in the first part of the year 2008. 10Mr Dash was called and has given oral evidence. It is abundantly clear, not only from exhibit R but also from Mr Dash's evidence, that his job or role was not to carry out the day-to-day operations of any one particular AMP shopping centre but was to ensure that each shopping centre had systems in place to ensure that all things ran as smoothly as possible, and that all statutory and other obligations of the occupier of a shopping centre were carried out. It is abundantly clear that the role of Mr Dash at the relevant time was not to identify any particular risk in a shopping centre, but his role was to ensure that each shopping centre had a system which would identify risks by regular inspection and reporting and the like, and would remedy such risks within an appropriate time-frame given the gravity of the risk. Inter alia, that required that there be adequate maintenance of records. 11I state that at some length and because one of the issues arising in this case is whether the second defendant owed any particular duty of care to the plaintiff. 12At the time of her injury, the plaintiff was fifty-one years old. She had been born on 26 November 1956. She came to Australia when she was six or seven years old from her native Crete. I infer that she came to Australia in 1963 or thereabouts. She spoke unaccented English and it is clear that most of her education was carried out in this State. 13The plaintiff had, prior to 13 February 2008, visited the Marrickville Metro once before, but her evidence was that it was shortly after the centre opened. She was not a regular visitor to this shopping centre. After the fall, the plaintiff visited the shopping centre on 15 February 2010 where she met Mr Neil Adams, an ergonomist and safety management consultant who was retained by her solicitors, Messrs Brydens. The plaintiff told me on oath that when she met Mr Adams she told him the truth about what happened to her. Furthermore, the description of the plaintiff's injury contained in Mr Adams' report dated 18 March 2010 is wholly consistent with the plaintiff's evidence-in-chief. That description is this: "[At] approximately 10 to 10.15am on 13 February 2008, Mrs Vourvahakis drove up onto the rooftop car park at the Marrickville Metro Shopping Centre (the shopping centre) and parked her car in the area marked in photograph 1. She alighted from the vehicle and started to walk towards the covered area that may be seen in the background of that photograph. And through which she intended to gain access to the retail level of the shopping centre. As it had been raining quite recently, and may still have been lightly sprinkling, Mrs Vourvahakis was aware that all of the exposed pedestrian surfaces in that area were quite wet. Mrs Vourvahakis advised me that as she walked towards the covered area, she saw extending fully across the roadway in front of her a metal structure that protruded somewhat above the roadway surface (see photographs 2 and 3). She did not give that structure any further consideration until she reached it and stepped onto its far side with her right foot. Unfortunately, she felt that foot slip rapidly forwards down that sloping surface, and she started to lose her balance. She remembers making a number of steps in a forwards direction as she staggered while attempting to regain her balance. She was ultimately unsuccessful, and fell heavily onto her hands and knees before she twisted and rolled onto her left side. She initially felt quite stunned as a result of having slipped and fallen in that manner. She recalls that she was lying on the concrete surface of the car park in that location, a woman who had parked her car nearby spoke to her. Mrs Vourvahakis was able to get back to her feet, albeit somewhat shakily, when she regained some of her composure." Photograph 1 in Mr Adams' report shows the rooftop car park and part of the additional car parking area on top of the rooftop car park. It would appear that the entry to the mall to which she was walking was underneath the additional tier which held the upper car park. 14It is common ground that at the time the plaintiff was wearing rubber thongs. It is common ground that the surface of the rooftop car park, where not covered by the additional upper car park, was wet, and that not only was the concrete wet but also was the metal structure that protruded somewhat above the roadway surface. 15Mr Adams was unable to ascertain whether this metal structure was a speed hump, a cable cover or an expansion joint cover by "simple visual inspection". Simple visual inspection confirms to me the opinion of the defendant's expert, Dr John Cooke, a consultant architect, that it was an expansion joint cover. This cover is about 209 millimetres wide. On one side of the expansion cover is a short, flat surface. There is then a triangular structure folding back to another flat metal surface. The second flat metal surface is much longer than that on the other side. It is clear from the photographs that the bolts on the longer side are inserted through slots which would enable the bolts to move horizontally. The only purpose for having such extended horizontal grooves is to allow the bolts to move, and this clearly indicates that the cover is, in fact, an expansion joint cover. 16In both [3] and [23] of his report of 4 August 2011, Dr Cooke tells me this: "The primary purpose of the metal plates is to protect the construction joints in the reinforced concrete floor slabs of the car park. Large reinforced concrete floor slabs are poured in sections, separated by construction joints filled with a flexible mastic or other similar material to permit the reinforced concrete panels to move as a result of normal shrinkage and the like. The metal plate consists of two parts, bolted to the floor slab either side of construction joint, with slotted holes to permit the concrete slabs to move without damaging the plates. The typical slotted holes on one half of the plate can be seen in Photograph No 2 in Appendix A. Where positioned across a roadway (as at the accident location), the sloping sides of the plates act as a traffic calming device (hump) as well as ensuring that the construction joint filler is out of contact with the moving plates." 17It would appear from what I have just quoted from Dr Cooke that the reason that the plates are not flat is to prevent the mastic, or whatever it is between the concrete slaps, from adhering to the plate itself, which would of course prevent any movement. During the course of argument, I directed the attention of counsel to a common experience of motorists that when concrete slabs are used in the construction of a roadway, the construction joints are usually filled with tarmacadam or asphalt which, on very hot days, when the slabs of concrete expand, is protruded upwards between concrete slabs, causing a small hump in the road surface which can be felt as bumps as one drives along the roadway constructed of sections of poured concrete slab. The inference I draw from Dr Cooke's description is that the mastic between the concrete slabs could be forced upwards when the concrete slabs expand and therefore there is a need to have a raised structure over the construction joints. 18According to the measurements made by Dr Cooke, the raised or triangular section or the hump in the expansion joint covers is 200 millimetres wide. Dr Cooke continues in [24] of his report to say this: "Metal plates were in common use in car parks in shopping centres to cover construction joints, and remain in common use. Based on my observations, metal humps of the type used at the Centre were commonly used at the time of the construction of the Centre." Dr Cooke assumed that the centre was constructed "in approximately 1988". Since it is an agreed fact that it opened in 1987, one may confidently assume that it was constructed at the latest in part of 1987 and perhaps over a period commencing a year earlier, that is, in 1986. 19The evidence of Mr Dash is that these expansion joint covers are common not only in shopping centres but in other commercial premises and indeed in high-rise buildings. Were I a jury, I would confidently state that these construction joint covers are commonly encountered by those who go shopping in even modest shopping complexes where there might be, for example, only a Coles or Woolworths supermarket and a few specialty shops, to much larger centres such as the Warringah Mall, which Mr Dash told me was the largest AMP shopping centre in this State. Indeed, the evidence disclosed that the roof of Metro Marrickville is covered by these expansion joint covers. 20Exhibit Q is an email sent by Mr Dash to his superior on 1 August 2012. It had attached to it fourteen photographs in which the expansion joint covers can clearly be seen in numerous places on the roof of the centre and indeed even where there is a crossing of expansion joint covers shown in the final photograph in exhibit Q. As a tribunal of fact, I have no hesitation of finding that these expansion joint covers are very commonly encountered in shopping complexes such as malls and are well known to members of the public. 21At the commencement of cross-examination, the plaintiff admitted that the rubber thongs she was wearing at the time of her fall were slippery when walking on wet surfaces. She agreed also that they were slippery on many surfaces. She admitted that a shiny metal plate, when wet, was also slippery. She admitted that wearing rubber thongs and walking on a shiny, wet metal surface was slippery, and indeed then admitted that walking in rubber thongs on a shiny, wet metal surface was in fact walking on a very slippery place. She then conceded that when she placed her foot on the metal surface of the expansion joint cover, she did not turn her mind to the question of slipperiness. She agreed that if she had given it thought, she would have known it to have been slippery, and agreed that if she had given it thought, she would not have stepped onto the slippery metal surface. 22A more detailed description of how the plaintiff stepped on the expansion joint cover was that she placed her right foot on the angled section of the triangle that was further away from her than the other downward slope of the triangle. In other words, she placed her right foot, as she was treading down, on a down-sloping structure, much like stepping on a down-going metal slope. That caused her to slip. She then tried to regain her balance, was unable to do so, and fell onto her hands and knees, and then rolled onto the left-hand side of her body. 23There is remarkable agreement between the findings of Mr Adams and Dr Cooke. Indeed, the findings of Dr Cooke are probably more potent for the plaintiff than those of Mr Adams. It is common ground between the two experts that the sloping metal surface, when wet, was inherently slippery and dangerous. 24Dr Cooke measured the gradient on one side of the triangle to be 31.6% and the gradient on the other side to be 33.6%. For surfaces with a slope in excess of 2%, the minimum dynamic coefficient of friction for a "slip resistant" surface is increased from 0.4, which is the required coefficient of friction for a horizontal surface. According to [32] of Dr Cooke's report, where the maximum slope of the plate was 33.6%, that is 18.6 degrees, the minimum dynamic coefficient of friction for a "slip resistant" surface of the gradient is 0.85. When measured by Dr Cooke, the dynamic coefficient of friction of the steel plate surface was 0.35 but had a far lower dynamic coefficient of friction on the angle side than the minimum of 0.85 required for a sloping surface under wet conditions. In [34] of his report, Dr Cooke said this: "I therefore agree with Mr Adams .... that the steel plate, when wet with water, is described as making a very high notional contribution to the risk of slipping when wet ..." 25An initial consideration must be whether the expansion joint covers complied with any relevant legal requirement. Dr Cooke was asked to assume that the expansion joint cover upon which the plaintiff slipped and fell had been in existence since the car park was built, and that clearly was assumed by him to be in 1988. However, the construction date was clearly a few years earlier. No evidence has been called by the first defendant as to when these expansion joint covers were put into place. One must assume that expansion joint covers were in place at the time that the centre opened to the public in 1987. The question then becomes, have they, between 1987 and 2008, been replaced? There is no evidence to that effect. 26There are only two things which can guide me. The first are the photographs themselves, the best photographs being in exhibit Q. The expansion joint covers look to me "old". They appear to have been in situ for some time. They appear to me to be somewhat "weathered", which would only indicate that they had not been recently installed. However, the better guide is the opinion expressed by Dr Cooke that, based on his observations, metal humps of the type used at the Marrickville Metro Shopping Centre "were commonly used at the time of the construction of the Centre". Accordingly, the opinion of Dr Cooke is that the type of expansion joint cover in place in this centre was one that was commonly used about the time that this centre was constructed. 27Dr Cooke was awarded the degree of Bachelor of Architecture by the University of Sydney in 1966. He commenced working as an architect in that year. He worked as an architect between 1966 and 1981. Commencing in 1974, he became a part-time tutor at the New South Wales Institute of Technology and a part-time tutor at the University of New South Wales. He also became a part-time building law lecturer at what is now the University of Technology, Sydney. Between 1987 and 1988, he was an academic visitor at the Institute of Advanced Legal Studies at the University of London. In 1990, he was admitted as a solicitor and worked for Messrs Blake Dawson Waldron in their litigation section. He also worked on that firm's construction and development law newsletter. Commencing in 1981, that is, at the time that he stopped working actively as an architect, he became a lecturer in the Faculty of Built Environment at the University of New South Wales and was subsequently to become a senior lecturer. He was awarded a doctorate in 1994. His experience and qualifications are very impressive. He in fact represented the Royal Australian Institute of Architects on the Standards Australia Slip Resistance Committee and was responsible for replacement standards in 1993, 1999 and 2002, and the explanatory handbook first published in 1999. 28Does Dr Cooke have the expertise to tell me that these expansion joint covers or construction joint covers were typically used in the mid-1980s? I answer that question affirmatively. I therefore proceed on the basis that the expansion joint cover that the plaintiff encountered at the time of her slip and fall had been in situ since the shopping centre opened in 1987. 29According to the evidence of Mr Dash, millions of people pass through this shopping centre every year. Exhibit 15 are "traffic counts" of visitors to this shopping centre compiled since October 2004. Initially, the plaintiff vehemently objected to the tender of those records, but I exercised my power under s 70 of the Civil Procedure Act 2005 to require the plaintiff to admit that these were business records. That admission was very properly made by Ms Fraser. She had no objection in the circumstance to the computation on top of exhibit 15, the computation made by the first defendant's solicitor from the raw material contained in the rest of exhibit 15. Many of the figures contained in exhibit 15 are estimates. However, there is nothing inconsistent between the estimates and what other actual counts disclose. It would appear that these counts are made by some electronic counters in the shopping centre. Suffice to say that I wholly accept that there may well be substantial over-counting in such figures. For example, someone may perform some shopping in one shop, return to his or her vehicle, deposit the purchases in the vehicle, and then return to shop in another place in the shopping centre: such a return would obviously be counted as a fresh visitor by some electronic sensor. 30However, what exhibit 15 discloses is that in 2005 there were over four and a half million visitors to the Marrickville Metro Shopping Centre; in the year 2006, just under five million visitors to the shopping centre; and in the year 2007, over five million visitors to the shopping centre. Even if one halves those counts, one can still see that there would be over two million visitors to this shopping centre every year. 31In addition to the concessions made by the plaintiff in cross-examination, Dr Cooke says this in his report at [25]: "It is a matter of common sense that smooth, steep metal surfaces are slippery when wet. It is also a matter of common sense that some types of footwear provide poor grip and/or poor support for the foot. Rubber thongs provide poor grip and poor support. The metal plates are obvious and easy to step over, thereby avoiding any contact between footwear and plate." After quoting from Mr Adams' report, Dr Cooke then goes on to comment that the horizontal width of the humped part of the plates was only 200 millimetres, on his measurements, and that the plaintiff could easily have stepped over the plate without walking on the sloping surface, and that was a concession the plaintiff herself made. 32I return, however, to where I started out, that is, to consider whether there was any legal impediment to the use of these expansion joint covers at the time that they were installed clearly prior to the opening of the centre in 1987. According to Dr Cooke, there was no such legal impediment. Australian Standard 4586 "Slip resistance measurement of new pedestrian surfaces" was first published in 1999. That standard was not relevant to this shopping centre as the standard only applied to "new materials". Dr Cooke then continues thus: "At the time of construction, the construction of buildings was regulated by Ordinance 70 under the Local Government Act 1919. Ordinance 70 commenced on 1 July 1974 and was in force until fully superseded by the Building Code of Australia (BCA) on 1 January 1993, after a transition period of twelve months. AS/NZS 3661.1:1993, AS/NZS 4663, AS/NZS 4586 and HB197:1999 have no statutory force under the current BCA and were all published after the centre was constructed in 1988. Ordinance 70 and the later BCA have no provisions governing the slip resistance of internal or external floor surfaces (apart from ramps and stairs). The BCA does not apply retrospectively, in any event. The steel plate surface at the accident location is therefore not required to have any slip resistant properties for conformity with the current BCA or with the preceding Ordinance 70." 33The only things which may have been applicable were requirements relating to disabled car parking spaces and the entrance to any building. However, Dr Cooke points out that the expansion joint cover in question was not on the path of travel between any disabled car parking spaces and the entrance of the centre. It was not in breach of Ordinance 70 at the time of construction. 34There is therefore no failure by the defendant to comply with any applicable building sub-legislation or any applicable Australian or New Zealand standard. However, I do know that when wet, the sloping sides of this expansion joint cover are unacceptably slippery, but the danger provided or offered by those slippery slopes can be avoided by any pedestrian stepping over the triangular or raised section of the expansion joint cover. I know that in each of the three years preceding the plaintiff's fall, there were at least two million visitors to this shopping centre. 35The first defendant was served by the plaintiff with a subpoena for production. The subpoena for production was sealed on 17 October 2011 and the last date for service of the subpoena was 26 October 2011. The first defendant was required to comply with the subpoena by 3 November 2011. The third paragraph of the schedule to the subpoena is this: "Any records of accidents occurring in or about the car park areas of the Defendant's premises from 15 February 2005 to 15 February 2008 including, but not limited to, accident reports, incident reports, investigation reports, photographs, film, DVD and/or video footage, claims, complaints, correspondence, memoranda, security officers' notebook entries and security logbook entries." All that was produced by the first defendant in answer to that subpoena was an incident report compiled by a security officer in the employ of the first defendant concerning the plaintiff's fall. It is clear from that document that the area in which the plaintiff fell was not under surveillance, which indicates that it was not the subject of any CCTV footage that might be held or kept for security purposes. 36In written submissions on behalf of the plaintiff, the following was stated: "It is inconceivable in any case that in the three or so years of occupation by the first defendant prior to the accident that no other accident had occurred on the rooftop car park." That is probably an accurate observation. One would expect in any car park which might be visited by over two million people in any one year that there would be some minor collisions between motor vehicles, minor collisions between the structures in the car park and motor vehicles, frequent collisions between shopping trolleys and motor vehicles, and, perhaps, even some unfortunate interaction between motor vehicles and pedestrians. However, what is here important is whether there were any earlier accidents of the type in which the plaintiff was involved. Despite the "inconceivability" of there being no earlier accidents, the plaintiff made no objection, at the time the subpoena was returned, to the lack of any other accident reports, and the person who answered the subpoena was not required for cross-examination as to the adequacy of the answer to the subpoena. No application was ever made to the Court for leave to administer interrogatories or to seek discovery. 37As the evidence is, there is no evidence of any other person having reported an injury caused by slipping on an expansion joint cover at the Marrickville Metro Shopping Centre. There is no evidence of any earlier slip and fall which may have gone unreported. There may have been such slips and falls, but they may not have been reported. There may have been earlier slips and falls which were not reported because the person who slipped and fell suffered no hurt or injury. However, the plaintiff asks me to speculate that there must have been earlier slips and falls. That inverts the onus of proof. The onus of proof is on the plaintiff, not upon the defendant. The defendant answered the subpoena and no objection was taken to the defendant's answer to the subpoena at the relevant time, nor was any application made to the Court. In other words, at the time the subpoena was answered, the plaintiff was happy with the return. Accordingly, the only inference I can draw is that the only slip and fall causing injury occasioned by stepping on the expansion joint covers in the defendant's car park over three years was the plaintiff's, and that the occurrence of that injury might be one in over six million. 38However, an accident-free history is not the end of any matter. In Bader v Jelic [2011] NSWCA 255, Macfarlan JA, with whom Young JA and Sackville AJA concurred, said commencing at [33]: "As to s 5B(2)(a), that is, 'the probability that the harm would occur if care were not taken', it is of significance that, according to Mr Bader's evidence, no accident had occurred in the five years prior to Mr Jelic's accident. As a finding has not been made that the rug upon which Mr Jelic stumbled remained in place after the accident, I do not however have regard to the subsequent lack of accidents of which Mr Bader gave evidence. As pointed out in Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, 'the weight that will attach to an accident-free history involves a question of fact to be determined in light of all the relevant circumstances' (at 309). In my view the accident-free history of five years preceding Mr Jelic's accident is of some significance in assessing whether a reasonable person in the position of the appellants would (at the date of Mr Jelic's accident) have regarded it as necessary to have the blind pulled down over the window." In that case, if the blind had been pulled down over the window, the respondent's injury might have been avoided. 39I should indicate that the expansion joint covers that were in place at the time of the plaintiff's fall appear to remain in place up until the present time. For example, they were clearly present when the plaintiff and Mr Adams attended the centre on 15 February 2010; they were clearly still in situ when Dr Cooke inspected the site on 14 July 2011; they were still in situ when Mr Dash attended the rooftop car park on 1 August 2012. Nothing has been done in response to the plaintiff's fall to the expansion joint covers at this shopping centre. 40The physical world is full of risks. In Skulander v Willoughby City Council [2007] NSWCA 116, Mason P said this: "[34] The world is full of risky situations and sometimes risks come home with most unfortunate consequences. The respondent was entitled to factor into its decision-making that pedestrians are capable of exercising responsibility for their own safety, but a duty of reasonable care remained. [35] In Jones v Bartlett (2000) 205 CLR 166, Gleeson CJ said (at 177[23]): 'There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality. The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense. In Phillis v Daly (1988) 15 NSWLR 65 at 74, Mahoney JA said: "There are dangers on any premises. A room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed."' [36] In Hill v Chiaverini [2004] NSWCA 265 at [29]-[31] I said (with the concurrence of McColl JA and Hislop J): 'The plaintiff was a lawful entrant to commercial premises owned and occupied by the defendants. There was an undoubted duty to take reasonable care, bearing in mind what is reasonable "will vary with the circumstances of the plaintiff's entry upon the premises" (Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 487-8). A finding of breach requires a conclusion that the occupier has acted unreasonably in responding to the foreseeable risk of injury, having regard to the well-known considerations referred to in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8. In determining what the defendants were required to do, acting reasonably, the occupiers could take into consideration what Mahoney JA described in Phillis v Daly (1988) 15 NSWLR 65 at 74 as "the law's expectation that the plaintiff would take reasonable care for [her] own safety" (see also Francis v Lewis [2003] NSWCA 152). This is not to assert that occupiers may ignore the fact that accidents occur due to entrants' inadvertence. Some criticism was directed at the trial judge's statement that "much emphasis has been placed in recent authorities on the requirement that plaintiffs act reasonably". In my view, this was a fair observation based upon recent appellate jurisprudence as to the content of the duty of care and issues of breach in various circumstances ... [references omitted].' [37] A busy place like a bus station will attract people who are distracted and at times inadvertent. Reasonable care for their welfare needs to be taken. But this could not amount to removing every conceivable obstacle capable of causing injury if a careless pedestrian collided with it. [38] Benches, bins and bollards could cause significant injury to the unwary pedestrian who tripped over them. The appellant counters with the argument there is a difference between tripping over something and striking one's head on it. True, but it is very much a matter of degree. The dangers and obviousness of the hazard need to be considered on their particular facts." 41In his report, Dr Cooke only suggested one method of obviating the risk caused by the sloping sections of the expansion joint covers when wet - that was that the metal plates, being obvious, could be easily stepped over. 42The only witness to give oral evidence in the defendants' cases was Mr Dash of the second defendant. Having visited the car park on 1 August 2012, it was his view that nothing needed to be done to these expansion joint covers, from his point of view, from his experience and training. The suggestions of Mr Adams are to the contrary. 43I turn now to consider the matters I am required to consider under the Civil Liability Act 2002. Part 1A Div 2 of the Act is headed, "Duty of care". A provision in that is s 5B headed, "General principles". As has been pointed out, s 5B does not really go to the existence of a duty of care, but rather to its breach. There is little doubt that the first defendant owed a duty of care to the plaintiff. Indeed, the first defendant does not deny that it owed the plaintiff a duty of care. It follows from the decision of the High Court of Australia in Australian Safeways Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 that the duty of the occupier of land owes to an invitee is the ordinary common law duty to take reasonable care. What that reasonable care is varies for circumstances of the plaintiff's entry upon premises. 44Section 5B of the Act is this: "(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." 45The first enquiry must be whether the risk of harm suffered by the plaintiff was foreseeable. That must be answered positively. Indeed, it is pithily pointed out by the plaintiff in her written submissions at [22] in this fashion: "Mr Polin cross-examined the plaintiff on the basis that the risk of slipping was obvious and so cannot be heard to say that his client, the occupier of a shopping centre, was unaware of the risk. To a shopping centre operator, and to InteRisk, the slippery expansion joint cover must be taken to be a plain and obvious hazard." I completely concur with that, at least as far as the first defendant is concerned. The plaintiff herself admitted that this was an obvious danger. If it was obvious to the plaintiff, it would have been obvious to any visitor to the premises, and therefore must have been obvious to the first defendant through its servants and agents, who one would expect would readily pass over the car park each and every day in order to do things such as collect rubbish and collect shopping trolleys and the like. 46The next question is whether the risk was "not insignificant". What is meant by those words? In Shaw v Thomas [2010] NSWCA 169, Macfarlan JA, with whom Beazley and Tobias JJA concurred, said at [44]: "In Wyong Shire Council v Shirt, Mason J referred to a risk 'which is not farfetched or fanciful' as being 'real and therefore foreseeable' (at 48). The requirements of s 5B(1)(b) that the risk be 'not insignificant' imposes a more demanding standard but in my view not by very much." In Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151, Tobias AJA said, commencing at [150], this: "Once one accepts that the relevant risk of harm was foreseeable, it is but a short step to find in a case such as the present that the risk was not insignificant. As I have indicated, according to the Ipp Report, the phrase 'not insignificant' was intended to indicate a risk that is of a higher probability than is indicated by the phrase 'not farfetched and fanciful' but not so high as to be indicated by a phrase such as a 'substantial' or 'significant risk'." 47Whether this risk was "not insignificant" is really a question of categorisation which could be applied at this stage or in the stage prescribed by s 5B(1)(c). In this case, I am prepared to find that the risk of harm was "not insignificant". A slip or trip and fall by an elderly person can cause a fractured hip. A slip and fall in what was not only a pedestrian walkway but a driving lane might cause a pedestrian to fall in front of a car. The risk is, in my view, "not insignificant". 48The next stage for me is to consider whether, in the circumstances, a reasonable person in the first defendant's position would have taken precautions. However, in determining whether the first defendant would have taken precautions, I am required to consider the matter in s 5B(2). 49The first is the probability that the harm would occur if care were not taken. Here, it has only been established that for over two million visitors in each of the three years preceding the plaintiff's fall, no one else reported having injured himself or herself by slipping and falling whilst treading on the expansion joint covers. No evidence has been adduced that since the plaintiff's fall some five years ago there has been a similar case. The probability that harm would occur if care were not taken is extremely small. In fact, to use words more traditionally used in the law of negligence, one could say it was almost remote. Indeed, not almost remote, but remote. 50The next question that I am required to take into account is the likely seriousness of the harm. For reasons which I will in due course give when assessing the plaintiff's damages, which I must do whatever the outcome of these proceedings is, the harm suffered by the plaintiff is not a good guide in this regard. The plaintiff suffered pre-existing spinal injuries. She had a degenerative low back, she had a constitutional problem in her left hip, and she previously injured her right knee. The plaintiff's essential complaints are of her low back condition, which had been previously injured, her right knee, which had been previously injured, and of her lift hip, and on no view of the medical evidence is the pathology in the hip causally related to this fall. The only issue is whether the injury triggered off the painful symptoms of her left hip problem. The plaintiff in the current matter was involved in two previous motor vehicle accidents and had sustained a number of work-related injuries. 51Again, consideration of "likely seriousness of the harm" is somewhat akin to discussing whether the risk was "not insignificant". In discussing that issue, I pointed out that a pedestrian might slip and fall in front of a motor vehicle. However, motor vehicles do not drive at great speed in car parks. Most car parks are limited to five kilometres per hour. I do not know what the car speed regime was on the first defendant's premises, however, one would not expect any driver to drive in a car park at more than ten kilometres per hour. Low speed impacts generally do not cause grievous injury. 52The next thing is the burden of taking precautions to avoid the risk of harm. The only suggestions as to avoiding the risk of harm are those raised by Mr Adams to which I shall, in due course, turn. 53The other thing that I am required to consider is the social utility of the activity that creates the risk of harm. Urban life in Australia is long distant from hunting and gathering activities of our forefathers of remote ancestry. In urban Australia, most people obtain their food and drink, their clothing and household goods by going to shops and buying them. The shopping mall is a modern incarnation of the Roman forum or the Greek agora, a modern form of the High Street shopping centres that were the norm in Australian cities and towns until the 1960s. Without shopping centres, our urban society would not properly function. The provision of shopping centres and attendant car parks is of great social utility. This is not, for example, a case of some hazardous occupation of little social utility being undertaken. 54The provisions of s 5C are not presently relevant. 55Certain provisions of Pt 1A Div 4 of the Act are here applicable. Section 5F provides a meaning for the words "obvious risk". It is in these terms: "(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable." Here, the risk of slipping on a wet, sloping metal surface was obvious to the plaintiff herself. It is obvious as a matter of common sense to any adolescent or adult. The risk was patent. Furthermore, the evidence of Dr Cooke makes it clear it is also a matter of common knowledge, and were I a jury - and I would have little doubt that if there were a civil jury, a civil jury would find that it was a matter of common knowledge that a sloping metal surface, when wet, is slippery - I would have no hesitation in finding that the risk of slipping on a wet, sloping metal surface such as one side of the raised section of the expansion joint covers in the defendant's car park was an obvious risk. 56Section 5G raises a presumption that injured persons are aware of an obvious risk, as in the following terms: "(1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of the occurrence of the risk." 57The plaintiff provides no good explanation in her evidence for why, when she knew that a sloping, shiny, wet metal surface was slippery, and when she knew that she was wearing thongs which made slipping in the wet, more likely she actually trod on the down-sloping surface of the metal expansion joint cover. However, the plaintiff merely says that she did not know that she would slip and fall. That does not mean that she was not aware of the risk. She said she saw this risk, the raised metal expansion joint cover, and knew that it was metal, and she knew because of the weather that it would have been wet, and thus she knew that it was slippery. I therefore find, despite her saying that she did not apprehend from her awareness that she would slip, that she was aware of risk. 58Section 5H provides that there is no active duty to warn of an obvious risk. I use those words advisedly because, in my view, the adjective "proactive" is an awful neologism which has no meaning above the word "active". The provision is this: "(1) A person ('the defendant') does not owe a duty of care to another person ('the plaintiff') to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection." One can see that the only relevant provision is that of subs (1). Here, the first defendant did not owe a duty of care requiring it to warn the plaintiff of the obvious risk that, when wet, the metal expansion joint covers were slippery. 59I then turn to the proposals made by Mr Adams for what he describes as "reasonable preventative measures", which is another way of saying the precautions to avoid the risk of harm that is mentioned in s 5B(2)(c). The relevant section of Mr Adams' report is this: "Among the reasonable preventative measures that could have been implemented, I would include an appropriate combination of the following: (i) Designated walkways could have been provided between the carious [sic, scil. various] sections of the car park and the entrances to the building. All such walkways could have been kept free of such potential impediments to safe pedestrian movement as surfaces, or objects mounted on the surfaces, that were slippery when wet; (ii) More specifically, the structure on which Mrs Vourvahakis slipped could have been covered with, or replaced by, a structure that provided adequate levels of slip resistance in wet conditions. For example, some similar looking structures I have seen were covered by textured humps made from treaded rubber or similar, while others comprised checker-plate steel; (iii) As it was entirely possible that pedestrians would from time to time step on to the hump, appropriate actions to make that hump safer for pedestrians could have been implemented. For example: (a) The gradients of the hump's sides could have been reduced; (b) The surface of the hump could have been modified to make it adequately slip resistant having regard to the gradient (such as by applying adhesive anti-slip strips or paint-on anti-slip preparation); (c) Obvious signs warning pedestrians that the hump was potentially hazardous, particularly in wet conditions, could have been erected in suitably prominent locations; (d) Appropriately slip resistant matting could have been rolled out over the hump during inclement weather." 60I reiterate, at this stage, that Mr Adams was unable to ascertain whether this expansion joint cover was such or whether it was merely a speed hump or a cable cover. Without knowing what the cover actually covered, if anything, one does not know how it might be modified structurally. For example, might a section of the expansion joint cover be made flat where a walkway was painted in the car park? If the cover were merely a speed hump, one would think that entirely appropriate. However, if it was an actual expansion joint cover, would its function be impaired by making a section of it flat, if the nature of the cover be determined by its function? In discussing the function of the expansion joint covers, I pointed out that whatever the mastic between the concrete slabs might expand upwards and hence the need for a hump or domed structure. Making a section of it flat could impede or interfere with its function. 61The plaintiff, in the course of argument, suggested that perhaps a raised walkway or ramp could be constructed through the car park, which would put the top level of the expansion joint on the same level as the ramp upon which the pedestrians were required to walk. However, how that would affect the construction of this car park has never been adequately explained. When one looks at the various photographs, a ramp next to a driveway would in fact stop cars parking in the designated car parking spaces. In any event, if sections of the expansion joint covers could be made flat or if a ramp could be constructed, there is not a scintilla of evidence as to the potential cost of such measures or how they might impede the functioning of the car park. 62The second suggestion of Mr Adams would require the replacement of the current expansion joint covers with other forms of cover. Mr Adams refers to "treaded rubber" and in exhibit Q can be seen, in addition to the expansion joint covers, what could well be padded rubber speed humps painted black and yellow in patches, no doubt to draw the attention of motorists to their existence. Whether padded rubber could be used to replace the expansion joint covers, again, is completely unknown to me and un-addressed by Mr Adams. Would the treaded rubber do an adequate job of protecting the expansion joint covers? Would it be able to be kept in the underlying mastic? These are questions that just have not been answered. 63The third set of alternatives argued by Mr Adams also raises more questions than they solve. Again, he suggests reducing the gradient of the sides of the expansion joint covers. Would that interfere with their function? I do not know. What would the cost of such be? I do not know. 64The next suggestion is that the speed hump surface could be made slip resistant by applying strips or paint. By strips or paint, what would be the cost of that? I do not know. What would be its efficacy? I do not know. Common sense indicates that if cars are being driven over the expansion joint covers, which they clearly are, cars could move much more quickly than affect things such as anti-slip strips and paint. The question is, how effective might that be and might it adhere to the metal expansion joint covers? This case, of course, is very different to the painting of a pedestrian crossing, which was the factual background in Garzo v Liverpool/Campbelltown Christian School. 65The next suggestion was the erection of warning signs. Because of the provisions of s 5H of the Act, that is not an appropriate suggestion. Furthermore, it begs the question. If the plaintiff has seen the raised metal expansion joint covers, comprehending that they were slippery when wet, comprehending that it was wet, comprehending that she was wearing footwear which made slipping more probable when wet, she did not put her perceptions together to comprehend what was going on. One wonders, therefore, if she could remain oblivious to the obvious risk, whether she would remain oblivious to a sign. 66The final suggestion put forward by Mr Adams is the rolling out of slip resistant matting during "inclement weather". As was pointed out by Mr Dash in his evidence, these expansion joint covers are all over the car park at this shopping centre and are all over car parks at other shopping centres. The idea that a shopping centre would have the manpower to roll out mats when rain starts to fall and then to take them back in when rain has ceased to fall, lest the wet matting itself offer a risk of tripping, brings to mind rain-affected cricket matches at places such as the Sydney Cricket Ground. We have a large number of attendants rolling out matting, waiting for the rain to pass over, and then rolling it back up so that play can recommence. The cost of having personnel available to respond to any down pouring of rain would, in my view, be prohibitive and contrary to common sense and human experience. It might be otherwise in putting a mat out at the doors to the shopping centre when it is raining, as is commonly done, but to cover all external metal structures with matting would, in my view, be unduly prohibitive. 67I return then to consider the provisions of s 5B(2), in particular par (c). The precautions suggested by Mr Adams have not been shown to me to be either possible or practical or a reasonable monetary impost. If shopping malls and the like were required to carry out tasks which Mr Adams suggests, the cost of running the mall might increase substantially, causing rent to increase for tenants, causing tenants to increase their prices, making the mall not one to be visited because of the increased cost and therefore defeat the whole purpose of the exercise. True it is that if the expansion joint covers wore out, they must be replaced, but clearly they would have to be replaced with structures that meet current Australian Standards and also current building codes. However, to replace them now is not required by either current standards or the current building code and the cost of replacing it might be a great monetary impost. 68Structures of yesterday must not be measured by standards that exist today. For example, if I were to buy a Victorian terrace house, I might encounter a very steep staircase going from one level to another. That staircase might be at a gradient that was much greater than modern building codes permit or much greater than modern standards prescribe. However, I still might purchase the terrace house, knowing that there is in it a steep staircase. One cannot judge structures of the past by current standards. That, essentially, is what Mr Adams is seeking to do in suggesting, for example, the replacement of the expansion joint covers with "textured humps made from treaded rubber or similar, or others comprised checker-plate steel". In any event, according to Mr Dash, even if these expansion joint covers were replaced with checker-plate steel, they would still be as slippery as the current ones are. 69Bearing in mind the provisions of s 5B(2)(a), (c) and (d), I am not persuaded on the balance of probabilities that a reasonable person in the position of the first defendant would have taken any precautions to obviate the risk of a person slipping on a wet, sloping surface of the expansion joint covers in its car park when the pedestrian in question was wearing rubber thongs which she knew to be slippery in wet conditions. I therefore am not satisfied on the balance of probabilities that the defendant was negligent, applying the provisions of s 5B. 70Even if I be wrong in that regard, the plaintiff clearly has been guilty of contributory negligence. In that regard, I take into account the provisions of s 5R of the Act. Under s 5S, "in determining the extent of the reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated". Such a submission has been put to me in this case by the first defendant. In the circumstances of this case, that is not an inappropriate submission. 71The plaintiff saw and perceived that there was this shiny metal expansion joint cover. She knew and perceived that it was wet. She knew that the shiny metal expansion joint cover was slippery when wet. She knew she was wearing thongs. She knew that the thongs were slippery when wet. This accident occurred because she did not turn her mind to the fact that putting her right foot on the down-going slope of the expansion joint cover could cause her to stumble and eventually to fall. Bearing in mind the fact that millions of people pass through this car park and that there is no evidence of any similar incidents occurring in the past or subsequently, I believe it appropriate to attribute 100% of the negligence of this accident to the plaintiff. 72Theoretically, that, I suppose, should also dispose of the plaintiff's claim against the second defendant. However, I should deal with the second defendant's submissions in that regard. 73After agreement was reached between the first and second defendants, it is clear that Mr Dash was appointed as the risk manager for the AMP shopping centres. As a result of that appointment, he carried out inspections of all of the AMP shopping centres in Australia. He carried out his inspection at the Marrickville Metro on 25 January 2008. He went to the centre at about 9am and left at approximately 2pm. He told me that he was on site for roughly five hours. When he attended at Marrickville Metro he met Mr Andrew Simmons, who was the Operations Manager of that shopping centre and, I infer, an employee of the first defendant. He also met Mr David McStravick, the National Operations Support Manager for all the AMP shopping centres, whom I assume is an employee of AMP Capital Shopping Centres Pty Ltd, whose name appears on the InteRisk report which became exhibit 3. 74Mr Dash, amongst other things, conducted a walkthrough, as he told me, of the premises, but not through all parts of it. He was accompanied on the walkthrough by Messrs Simmons and McStravick. Eventually a report was generated, a copy of which is exhibit 3. The overview contained in the "executive summary" is this: "This report has been put together following a centre review process conducted during January 2008. The review was for AMP Capital Shopping Centres and primarily looked at the management of Operational Risks at the Centre as well as the implementation of the procedures in the Environmental Health & Safety Handbook." 75The "Environmental Health and Safety Handbook" became exhibit P. The version that became exhibit P was numbered version 3.1. From p 5 of that document, I know that the original publication was "launched" in October 2006 and that there was an update to that document, version 2, in October 2008, a further version published in June 2010, and version 3.1 published in June 2011, which had an adjustment to the "second update" which led to the publication of June 2011. The plaintiff called for the original version, that is version 1, but it was not produced. All that the first defendant could produce was the version 2, published in October 2008. 76At the time that Mr Dash visited Marrickville Metro, one can see that the handbook had been in existence for some fourteen months. One can note from the "overview" that Mr Dash was primarily concerned with the management of risks and the implementation of procedures. He was not there to identify risks and say how they should be treated, however, he did so. 77The report raises twenty-one items numbered from 2008/01 to 2008/21. Under each item, there is an observation made followed by photographs, if necessary, followed by a reference to the handbook. The first observation concerned contractor management. The second observation concerned pedestrian safety at loading dock 3; presumably, members of the general public, shoppers, do not visit the loading dock. The third item was trolley maintenance, that is, the maintenance of shopping trolleys. The fourth item was the obstruction of emergency exits. 78The fifth item was of car stops being a trip and fall hazard. The observation is this: "The car park stops near the upper entry into the centre are not highlighted. This raises trip and fall issues, especially as the car stops are located in close proximity to the centre entrance." Then follows a recommendation: "Recommendation is to highlight the car stops with yellow paint. Priority should be given to the stops that are located in close proximity to the centre entrances. All entries from the car park should be reviewed and car stops highlighted as required." There is then a photograph taken from what appears to be the veranda of an entrance to the shopping mall and one can see car stops at the end of car parking bays near the columns which support the veranda. There is a cross-reference to the handbook at the bottom of the description of this item. 79Mr Dash made it clear in his evidence that he was taken to this entrance of the car park by Messrs Simmons and McStravick, made his observation, took his photograph and made no further entry into the car park. In his email, which became exhibit Q, Mr Dash made it clear that he was not taken through the car park, although the photograph referable to item 2008/05 was taken from "the inside entry of the centre near the top of the escalators". In the same email, Mr Dash said this: "I revisited the centre today to refresh myself of the ICR [initial centre review] and I can confirm that I was not escorted through the car park at the time of the ICR." 80Other items discussed in the report, which became exhibit 3, are pavers leading into the main entry of the centre that have moved, leaving an uneven walking surface causing a trip and fall hazard. Other items concerned electrical testing and tagging, exit door signs, "housekeeping", especially where trolleys were found obstructing emergency entrances, damaged tiles constituting a trip and fall hazard in the food court, damage to a fire door on its outside, visitors' pushbikes being chained to a railing at the entrance to the centre, and problems with loading docks, trolley collection vehicle, hose reels, hazardous substance storage, damaged automatic doors, pallet and car park storage, some graffiti at the entrances to the car park, and obstructed signs, and cooling tower corrosion. It can be seen, therefore, that roughly half of the risks that were being identified were risks not to members of the public but general administrative problems in the running of the shopping centre and risks that existed to employees as distinct to visitors to the centre. 81Accordingly, there is no evidence, indeed the evidence is to the contrary, that Mr Dash saw or had his attention drawn to the metal expansion joint covers in the car park at the time of his visit on 25 January 2008. In any event, his role was to try to ensure that the management of this shopping centre were complying with the requirements of the Environmental Health and Safety Handbook that had first been published in October 2006. He was there to ensure that systems were in place for the management of risks. He was not there to manage any risk itself. 82Prior to calling upon Mr Catsanos, who appeared for the second defendant, to address me, I enquired of learned counsel for the plaintiff what was the nature of the plaintiff's case against the second defendant. She said that the second defendant owed a duty of care to the plaintiff and to every visitor to the premises to identify risks to which members of the public were exposed. Using, as is normal in my court, the Socratic method, this was distilled down to a proposition that the second defendant was under a duty to identify any risk to visitors of injury and to report that risk to the first defendant. In my view, no such duty existed. The duty to identify risks and obviate them remained, even under the arrangement between the first and second defendant, with the first defendant. The second defendant's role was to make sure that there were systems in place that were being maintained such that all such risks could be properly managed. 83What Mr Dash did on 25 January 2008, in visiting this site and reporting on problems that he observed, was no doubt to indicate to Mr Simmons how he ought to act and what he ought to do, and how he should ensure that the Environmental Health and Safety Handbook be applied. 84Mr Catsanos for the second defendant submitted that the passing on of information does not give rise to a duty of care per se, but even less could it give rise to a duty relating to information not actually passed on to the second defendant. In that regard, he referred me to the judgment of Kirby J in Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330 at [236] et seq. 85As Mr Catsanos submitted, the second defendant's role was to advise on operational risks. If it was under any duty of care to the plaintiff in the performance of that task, the duty could only involve requiring it to take reasonable care in assessing the operational risks. There is no evidence to suggest that the operational risk assessment carried by Mr Dash on behalf of the second defendant was not properly done. In the circumstances, the second defendant owed no applicable duty of care to the plaintiff. 86If the existence of the expansion joint covers had been drawn to the attention of Mr Dash on 25 January 2008, it is clear that he would not have recommended any "remedial" action being taken. If he had, he would have included it in his report. The report, however, was not in fact sent to the first defendant until 28 March 2008. 87Antecedent to that, the EHS risk register, which is essentially a synopsis of the twenty-one items identified by Mr Dash, was sent to the first defendant on 10 March 2008 for the first defendant to decide on the actions required, by whom those actions were to be carried out, by what date the actions were to be carried out, when there was to be a review as to whether the actions had been carried out, and finally with a date for the completion of the actions. The completed form was sent back to Mr Dash on 26 March 2008, which led to his sending out of the report on 28 March 2008. In other words, even if something had been said in the report or in the EHS risk register that was sent to the first defendant on 10 March 2008, it would not have obviated any risk of injury to the plaintiff to which she succumbed on 13 February 2008. There was therefore no causation by the second defendant of any injury suffered by the plaintiff. 88Causation, of course, is governed by s 5D of the Act, and here there was no, in my view, factual causation such that I even need to consider the conjunctive test provided by s 5D(1)(b) of the Act. Accordingly, even if I held that the first defendant were negligent, I would still find against the plaintiff in favour of the second defendant because, as I said, in my view the second defendant owed no duty of care to the plaintiff, and even if it did, it could not be the factual cause of the plaintiff's injury because of the timeframe involved - a visit on 25 January 2008, the plaintiff's fall on 13 February 2008, then on 10 March 2008 the second defendant sending the EHS risk register to the first defendant to which the first defendant responded on 26 March 2008, leading to the publication of the report, which became exhibit 3, on 28 March 2008. One might wonder why there was so much time between 25 January 2008 and 10 March 2008, but that may well be explained by the need of Mr Dash to visit the other properties owned by AMP Capital Shopping Centres Pty Ltd. 89HIS HONOUR: No one wants anything further on liability at this point? Any further reasons? FRASER: No. No. 90HIS HONOUR: Yesterday, I made findings on a question of liability which point to the ultimate disposal of the current proceedings. However, I should add a few further observations on that question. 91The plaintiff points to the requirement in the first defendant's Environment Health and Safety Handbook. On p 63, under the heading of "Housekeeping", the third bullet pointed requirement on that page is that all employees of the first defendant and its contractors are required to uphold a clean and safe workplace by ensuring a number of things. The fourth of those things is this: "Slip testing completed as per the requirements of Australian Standard 3661. (to be completed quarterly for Shopping Centres and annually for Office and Industrial sites). A risk assessment should be conducted by each site to ensure that the appropriate locations are tested, areas can include: