Submissions
39 The essential submission made by Mr W Washington, who appeared for the appellant on appeal and at trial, was that the primary judge gave no weight to evidence that the ramp was then the only access to and from the car park and, too, to the fact that it had a central division dividing upwards and downwards pedestrian/shopping trolley traffic. He complained that his Honour ought to have inferred that if the upwards side of the ramp had been closed, it would have created, rather than obviated, hazards. He also submitted that the steps Moonlight took in discovering the leak, erecting warning signs, mopping the floor regularly and verbally warning the respondent momentarily before her fall was sufficient, in the circumstances, to discharge both Moonlight's and its duty of care. Mr Washington also argues the primary judge failed to consider the steps the builders took, at the security guards instigation, to cover the leaking roof.
40 While Mr Washington accepted that the appellant owed a duty of care even to careless customers, he argued that that was not a general duty to protect careless people from the consequences of their own carelessness: Phillis v Daly (1988) 15 NSWLR 65 (at 74), per Mahoney JA quoted with approval by Davies AJA in David Jones Ltd v Bates [2001] NSWCA 233 (at [18]).
41 Mr Washington contended in his written submissions that an occupier in the appellant's position was entitled to expect that a person in the respondent's position would not be so inattentive as to fail to observe three yellow warning pillar signs, fail to have regard to a cleaner actively mopping the floor in her intended path and disregard a verbal warning from the cleaner, as well as a warning sign he had set up adjacent to him. In oral argument, Mr Washington conceded he could place minimal reliance on the verbal warning. This was an appropriate concession when regard is had to Mr Nagem's evidence that the respondent fell just as he uttered his last word.
42 Mr Washington submitted that in all the circumstances the steps the appellant, through Moonlight, had taken satisfied its burden of a reasonable response without it having to take the additional step of closing off the area in question with possible consequent inconvenience and danger.
43 Mr Washington also relied upon what he contended was the respondent's failure to take reasonable care for her own safety, to submit that her failure to take heed of the four signs and the sight of a cleaner actively mopping the area, led to the result that there could be no causal connection between any duty of care the appellant might have owed and the harm the respondent suffered.
44 Next, Mr Washington submitted that the primary judge erred in determining that cl 34 and cl 36 of the Regulation gave the respondent a cause of action for alleged breach. In the course of oral argument the Court raised with Mr Washington the threshold question whether the Occupational Health and Safety Act 2000 (the "Act"), pursuant to which the Regulation was made, applied to the circumstances of non-employees such as the respondent. He accepted this point had not been raised at trial. I shall return to this issue.
45 Finally, on liability, dealing with the issue of contributory negligence, Mr Washington submitted, substantially for the reasons he relied upon on the issue of breach, that the respondent had been guilty of contributory negligence. He also submitted that the primary judge's conclusion that contributory negligence was unavailable to the appellant in respect of the statutory counts was in error having regard to Booksan Pty Ltd v Wehbe [2006] NSWCA 3; (2006) Aust Torts Rep ¶81 - 830 (at [167]) per Ipp JA (Giles and Tobias JJA agreeing).
46 As to damages, Mr Washington submitted that the primary judge ought to have concluded that none of the respondent's medical reports satisfied the criteria for such documents enunciated by Heydon JA in Makita (at [85]) in that they failed to identify observed and assumed facts and that the basis of the opinions were unexplained to the extent that his Honour ought to have concluded that the reports comprised largely "a combination of speculation [and] inference": HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 (at [41]) per Gleeson CJ.
47 Mr Washington argued that on a proper analysis of the respondent's medical reports the only finding open to his Honour was that the respondent suffered a soft tissue injury to one hand of reasonably short duration. He contended that if Makita was applied, the Court ought to conclude that the respondent suffered little or no long term non-economic loss from the consequences of the fall and, in any event, insufficient non-economic loss to place her at or above the statutory threshold in s 16(1) of the Civil Liability Act.
48 Mr C S Leahy SC, who appeared with Mr A R Reoch for the respondent on appeal, but not at trial, pointed out that there was no evidence that the respondent had heard Mr Nagem's verbal warning prior to falling, nor that it was, if given, given in time for her to react to it. Mr Leahy also drew attention to Mr Rodgers' evidence that the car park on level two could have been closed with patrons directed to car parks on levels three and four without them having to use the ramp to level two.
49 Mr Leahy submitted that the primary judge's finding that the appellant was in breach of its duty of care was amply supported by Mr Nagem's evidence that it was possible to tape off the wet area on the ramp to allow use only of the clear (dry) pathway, but that he had not done so as he did not have any barrier tape nor was he instructed to limit access in that area. He also drew attention to Mr Nagem's evidence that he did not place matting on the hard surface, as he had not been provided with any.
50 Mr Leahy emphasised that the appellant had ultimate control of the Centre to support the primary judge's conclusion that the steps Moonlight took did not adequately discharge the appellant's duty of care. He pointed to the evidence that while Moonlight worked at the direction of the security guards, if any problem arose, the security guards were required to refer an event concerning a safety matter to the appellant's operations manager, although the security guards themselves had authority to direct patrons to the Centre and to close areas or erect barricades: see primary judgment (at [34]).
51 Mr Leahy submitted, in essence, that the appellant's submissions failed to recognise (although they did not challenge) the primary judge's conclusion that the case concerned a system for ensuring the safe use of premises where there was a structural defect during reconstruction work, rather than being merely a cleaning case. He pointed out that the foregoing matters were not delegated by the appellant which retained its duty to keep the premises safe.
52 Mr Leahy submitted that this was not a case where the respondent had failed to take reasonable care for her own safety. First, he pointed to the fact that there was no evidence the respondent had heard Mr Nagem's warning and that, in any event, the warning "be careful ma'am" was of a general nature and did not draw her attention to the hazard she was about to encounter. Next, Mr Leahy acknowledged the respondent did not see the safety warning cones, but pointed out that they said "slippery floor" in an area where the floor was not slippery. Further, while the respondent saw the cleaner when she reached the top of the carpeted area of the ramp, he was mopping the floor on the opposite side of the tiled floor, near the sliding doors to the car park. While she did not see the warning sign near him until after the fall having regard to the primary judge's finding that it was not near the area where the respondent fell, it did not warn her about the area upon which she was about to place her foot.
53 Mr Leahy submitted that it was open to the primary judge to find, as a question of fact, that the appellant had breached its duty of care and that that conclusion should not be disturbed.
54 Mr Leahy also submitted that the primary judge did not err in concluding that cl 34 and cl 36 of the Regulation conferred a private right of action upon the respondent which had been breached. In response to the threshold point the Court raised, he argued that the scope of the Act did extend beyond the workplace.
55 Mr Leahy submitted that the primary judge's conclusion that the respondent had not been guilty of contributory negligence should not be disturbed in circumstances where his Honour had found that the warning cones and sign were not in the area where she was exposed to danger but on the carpeted ramp (warning cones) and near the cleaner near the vending machine on the other side of the sliding doors (warning sign). He pointed to the fact that the primary judge found that the respondent was looking where she was going. As to the appellant's complaint that the respondent was wearing thongs, Mr Leahy pointed out that that was hardly a remarkable circumstance, "even in shopping centres".
56 Mr Leahy's written submissions did not address the decision in Booksan. I understand that to amount to a concession that contributory negligence, if established, was an available defence in the respondent's case albeit that she relied, in part, on breaches of statutory duty. I shall return to the significance of this implicit concession.
57 Turning to damages, Mr Leahy submitted that it was a matter for the primary judge to evaluate the medical reports in circumstances where all medical reports were admitted by consent and where the appellant did not seek, by voir dire, or at all, to challenge their admissibility and, in particular, to argue that they offended any rule of evidence or law. He contended that the appellant's real complaint was that the primary judge had preferred the appellant's medical evidence to that the appellant relied upon. He submitted that the primary judge had carefully evaluated the medical evidence and had been assisted in that task by his acceptance of the respondent's evidence.
58 As to non-economic loss, Mr Leahy drew attention to the medical evidence which supported the proposition that the respondent suffered and continued to suffer from significant ongoing disability with her left hand and wrist pain with sensory disturbance, loss of strength and dexterity, post-traumatic tenosynovitis in her left hand with chronic regional pain syndrome with a component of early carpal tunnel syndrome and mild and intermittent pain and stiffness in her lower back consistent with a lumbar strain injury. He also drew attention to the fact that the respondent had been unable to increase her duties as a child care worker which, prior to the accident, had been her intention once her obligations in respect to her own children diminished. He pointed to the fact that the respondent's physical disabilities arising from the accident inhibited her ability to resume her previous work but that she had undertaken steps to qualify for alternative employment. In those circumstances he contended that the primary judge's finding of 26 per cent non-economic loss ($35,500) was within a proper discretionary range.
Negligence: Consideration
59 As I have said, it was common ground that the appellant was the occupier of the Centre. This status arose from its care, control and management of the premises. By virtue of its power of control, it owed the respondent, as a lawful entrant to the Centre, a duty to take reasonable care to avoid a foreseeable risk of injury. The measure of the discharge of its duty was what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 487 - 488) per Mason, Wilson, Deane and Dawson JJ, approving the observations of Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 (at 662 - 663); see also Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 (at [17] - [18]) per Gleeson CJ (Gaudron J agreeing (at [42])); (at [60]) per Kirby J; (at [112]) per Hayne J (Gaudron J agreeing (at [42])); (at [138]) per Callinan J; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [45]) per Gummow J (Heydon J agreeing).
60 Determining whether the duty had been breached turned upon the probability of the risk occurring, the magnitude of the consequences and the expense or inconvenience of eliminating the risk: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (at 47) per Mason J. In the assessment of breach, weight had to be given to the expectation that the respondent would exercise reasonable care for her own safety and also to the possibility of "inadvertence" and "thoughtlessness". However it must also be accepted that while persons exercising reasonable care will be able to avoid injury in some situations, other situations present "a foreseeable risk of harm" even to persons taking such care: Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 (at [160], [163]) per Gaudron, McHugh and Gummow JJ; Dederer (at [45] - [46]) per Gummow J.
61 While both the appellant and Moonlight had a degree of control and management in relation to the premises, Moonlight's opportunity to deal with the consequences of the leaking roof was, as the primary judge found, circumscribed by its contract. In particular, it had no authority to barricade areas of the Centre. It was open to the primary judge, accordingly, to conclude that the answer to the question whether the appellant and Moonlight had breached their duties of care was not necessarily answered merely by reference to what Moonlight did. Their duties of care were not coterminous, but depended upon the extent to which they could exercise control and management: see Burrum Corporation v Richardson & Gehrmann [1939] HCA 30; (1939) 62 CLR 214 (at 228) per Latham CJ; Demczuk v Polish Soc Dom Mikolaja Inc (1987) 46 SASR 223 (at 231) per von Doussa J.
62 The appellant does not challenge the proposition that the wet floor of the ramp and the tiled area posed a foreseeable risk of injury to people in the respondent's position. Accordingly, I turn to the question of breach. That issue has, of course, to be considered on the basis that the steps Moonlight took adequately, but only partially, discharged the appellant's duty of care.
63 I would first reject the appellant's complaint that the primary judge erred on the issue of breach in failing to consider the steps taken to cover the leaking roof. In my view that complaint affords the appellant no solace in circumstances where the steps taken were clearly inadequate. Notwithstanding plastic sheeting apparently being placed over some part of the roof covering the ramp area, the leak persisted throughout the morning. Indeed the roof was still leaking when Mr Rodgers inspected the ramp area an hour or so after the respondent fell.
64 I would also reject the appellant's complaint that the primary judge erred in concluding that the appellant breached its duty of care by failing to take steps to close the area of the carpeted ramp onto which water was leaking so as to permit pedestrian passage along and across a dry path. In my view it was open to the primary judge to conclude from Mr Nagem's and Mr Rodgers' evidence that steps could have been taken to prevent members of the public accessing that part of the ramp onto which the water was falling. There was no suggestion such a step would have involved any cost. It was a simple step which would have prevented the transfer of water from the carpeted ramp to the tiled area where, as Mr Nagem frankly acknowledged, it was a danger.
65 Nor do I accept the appellant's submission that the primary judge erred in not inferring that taking that step would have created, rather than obviated, hazards. The evidence disclosed that one side of the ramp was wide enough to allow two shopping trolleys to pass. Further, closing of the upwards ramp could be expected to have been a temporary measure, pending (prompt) rectification of the leak problem.
66 Requiring shoppers to negotiate the passage of shopping trolleys on one side of the ramp was, in my view, a reasonable step for the appellant to have taken. It might be inferred that shoppers could negotiate the successful passage of their trolleys without incident, just as such passage is constantly negotiated within supermarket aisles. Taking that step would have avoided exposing people in the respondent's position to the risk of slipping on a danger they could not easily observe: a thin film of water on a tiled floor. Further, as Mr Washington conceded in argument, by continuing to allow pedestrians such as the respondent to walk over the wet area, it was entirely possible that it was she who had transferred the water from the carpet onto the tiled floor. Diverting shopping centre users to the dry side of the ramp could easily have obviated the risk of that occurring.
67 I would also reject the appellant's complaint that the primary judge erred in not giving sufficient weight to what it asserted was the respondent's carelessness. In my view, the appellant has not pointed to any evidence which demonstrates error in his Honour's conclusion that the respondent was looking where she was going and that, while Moonlight discharged its (and, as I have said, in part, the appellant's) duty of care in placing the warning cones, they were sufficiently distant from the actual location of the water on which she fell as not to alert her to the danger she was about to encounter.
68 As the primary judge's finding on the issue of "obvious risk" indicates, the respondent was indeed unaware of the water on the tiled floor. Mr Nagem's evidence, and common sense, demonstrated that that was foreseeable, the water being invisible on a tiled floor. Moreover, as I earlier indicated, and as Mr Washington conceded, it is entirely possible that the respondent herself transferred the water onto the tiled floor after walking through the damp patch on the carpeted ramp. Thus she was exposed to risk of injury even when she was looking where she was going due to the "invisibility" of the danger she was about to encounter.
69 I would add, in relation to the appellant's submission concerning the warning cones, a reference to Bryson J's observation (Meagher and Heydon JJA agreeing) that "[e]very day experience does not support attributing talismanic force to signs as means of averting dangers [and] [i]t is commonplace to see warning signs ignored": Waverley Council v Lodge [2001] NSWCA 439; (2001) 117 LGERA 447 (at [35]). However I repeat that I discern no error in the primary judge's conclusion that the respondent did not see the warning cones.
70 For similar reasons I would reject the appellant's complaint that the primary judge erred in not concluding the respondent was guilty of contributory negligence.
71 It was not entirely clear whether Mr Washington pressed the causation argument. However, if he did, I would reject it. It depended, to some extent, on the same factual substratum as was relied upon in support of the proposition that the respondent failed to take reasonable care for her own safety. As to that I would merely note that the appellant was liable if its wrongful act or omission resulted in increased risk of injury to the respondent. If that risk eventuated, the appellant's conduct materially contributed to the injury she suffered whether or not other factors also contributed to that injury occurring: Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 (at [27]) per McHugh J; approved Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 (at [31]) per Gaudron J, (at [127]) per Callinan J; see also English v Rogers [2005] NSWCA 327; (2005) Aust Torts Rep ¶81 - 800 (at [73]) per Mason P (Santow JA and Brownie AJA agreeing).
72 In my view the primary judge did not err in concluding that the appellant's negligence caused the respondent's injury.
Statutory Causes of Action: Legislative Framework
73 The long title to the Occupational Health and Safety Act 2000 explains that it is "An Act to secure the health, safety and welfare of persons at work; to repeal the Occupational Health and Safety Act 1983; and for other purposes". Its objects are set out in s 3. It is unnecessary to set them out in full. It is sufficient to observe that the first object is "to secure and promote the health, safety and welfare of people at work" (s 3(a)) and that the remaining objects are all directed to reinforcing the manner in which that obligation should be discharged in respect of "people at a place of work" (s 3(b) and, in substance s 3(c), s 3(e)). The only exception is s 3(h) which concerns dealing with "the impact of particular classes or types of dangerous goods and plant at, and beyond, places of work."
74 "[P]lace of work" is defined in s 4 to mean "premises where persons work".
75 Part 2 of the Act deals with "Duties relating to health, safety and welfare at work". Division 1 covers "General duties". Section 8(1), which appears in that Division, requires an employer to "ensure the health, safety and welfare at work of all the employees of the employer". Section 8(2) provides:
"(2) Others at workplace
An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work."
76 Section 9, which also appears in Division 1, requires "[a] self-employed person [to] ensure that people (other than the employees of the person) are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work".
77 Section 10, which also appears in Division 1, deals with the duties of controllers of work premises, plant or substances. A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health: s 10(1). The duties of a person under s 10 apply only "if the premises … are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person" (s 10(3)(d)) and "do not apply to premises, plant or substances used only by employees of the person": s 10(3)(a). "Controller" is not defined in s 10 but includes "a person who has only limited control of the premises", to the extent of that control and "a person who has, under any contract or lease, an obligation to maintain or repair the premises", to the extent of that obligation: s 10(4).
78 A person who contravenes a provision of Division 1, whether by act or omission, is guilty of an offence against that provision and is liable to the maximum penalty set out in s 12.
79 Part 2, Division 3 ("Related duties") requires "[a]n employee …, while at work, [to] take reasonable care for the health and safety of people who are at the employee's place of work and who may be affected by the employee's acts or omissions at work": s 20(1). Penalties for breaching s 20 appear at the end of that section indicating that contravention of the section is an offence against the Act, punishable on conviction by a penalty not exceeding the penalty so specified: s 18, Crimes (Sentencing Procedure) Act 1999.
80 Part 2, Division 4 sets out "Ancillary provisions". Section 32, which appears in that Division, provides: