By Statement of Claim filed on 4 November 2019, the plaintiff sued the defendant in negligence for personal injury damages. At the commencement of the hearing, the parties announced that the quantum of damages was agreed in the sum of $136,810. The parties contested liability only.
The defendant occupied Roselands Shopping Centre and specifically for the purposes of this case, a pedestrian crossing at the red level carpark, across which shoppers walked when moving between the parked cars and the shopping centre. The plaintiff fell and suffered injury on his approach to the defendant's pedestrian crossing. He was returning to his taxi, which he had left in the car park.
The crossing was in the typical form of white painted rectangles. It traversed what was referred to as the "circuit roadway" by which cars entered the carpark. It was raining and the circuit roadway was wet. The circuit roadway was partially covered, however failure of protection from rain was not pressed as a particular of breach of duty of care by the plaintiff. Indeed, Dr Cooke, expert architect witness retained by the plaintiff, commented that it was "not feasible to keep the carpark surface dry in wet weather" (Exhibit C page 10). All references to page numbers referred to in these reasons are the pagination of the Joint Tender Bundle (MFI 2).
Zaidan v Vicinity Centres PM Pty Limited t/as Roselands Shopping Centre [2020] NSWDC 852 | Case summary | Zoe
Of most significance is that the first white painted rectangle of the pedestrian crossing, for a pedestrian exiting the shopping centre to cross the circuit roadway on return to their parked car, was upon the driveway-like ramp between the road and the level of the floor of the shopping centre entrance. This location and the surrounding ramp was seen in CCTV (Exhibit A) to be painted yellow.
Because the circuit roadway was wet, the CCTV appears to show it as black. The surface of the circuit roadway was trowelled concrete. It was agreed that such a surface was typical of shopping centre carparks at the time the subject carpark was constructed. Finally, it was common ground that there was no directly applicable Australian Standard of friction coefficient for that concrete surface.
In their Joint Report, Exhibit D, the expert witnesses - Dr Cooke for the plaintiff and Professor Keirnan, Engineer, retained by the defendant - agreed the following points:
1. The friction coefficient of the location of the plaintiff's fall could not be tested or inspected because of intervening building renovations;
2. The recommended friction quality for a pedestrian crossing in the location would be as described in class W of table 1, HB 197:1999;
3. The surface at the location was required to be "slip resistant", meaning that the dynamic coefficient of friction would be at least 0.4 when tested in accordance with the applicable Australian Standard and, from reference to table 1 of HB 197:1999, titled "An Introductory Guide to the Slip Resistance of Pedestrian Surface Materials".
Table 1, referred to by the experts, explains how one equates slipperiness with a coefficient of friction. In the terms adopted by the experts, the appropriate description for the location was "detectably slippery/marginally safe/safe for normal stride, pace and attention/non-slip with reasonable care".
The Exhibit A CCTV was of two hours duration and showed the plaintiff's fall at the one hour point. The parties did not require the Court to view more than the incident and from a minute or so before to a minute or so afterward. Experienced counsel for the parties efficiently approached the history of performance of the pedestrian crossing and the content of the CCTV on the following agreed basis (agreed facts Exhibit 2 and agreements orally reached during submissions):
1. The defendant possesses no record of a complaint of a person or persons slipping on the subject pedestrian crossing during the 12-month period immediately preceding the date of the plaintiff's accident;
2. In the one-hour period before the plaintiff fell on the pedestrian crossing, the CCTV evidence demonstrates that at least 150 persons walked over the subject pedestrian crossing without slipping;
3. In the one-hour period following the plaintiff's fall, the CCTV evidence demonstrates that at least 180 persons walked over the subject pedestrian crossing without slipping;
4. Of the 330 persons shown in the CCTV evidence of two hours duration, the persons using the pedestrian crossing included adults with children, persons with shopping trolleys, persons impaired with the use of a walking stick, persons of a broad variety of ages as might be expected of a sample of the community, persons walking quickly, persons walking slowly, one person running, and included persons wearing a broad variety of footwear.
In his Statement of Claim at paragraph 5, the plaintiff described the incident as follows:
"On or before 9 June 2018, the plaintiff was leaving the premises and as he made his way from the ramp area onto a pedestrian crossing in the carpark, he slipped and fell on the painted area of the pedestrian crossing by reason of the area being significantly contaminated by water."
Lest it not be clear, the plaintiff's direction of travel was from the shopping centre, returning to his car in the carpark. At the moment of his fall, he was at the ramp.
The particulars of negligence listed at paragraph 9 of the Statement of Claim frankly do not identify any failure to take precautions on the basis of which the case was run and specifically do not plead a failure to provide and maintain a surface of adequate friction coefficient at the location of the plaintiff's fall. The case was, however, run on the basis that in the conditions of the surface being wet it presented a slip hazard which the defendant ought have taken reasonable precautions to prevent. A substantial difficulty for the plaintiff is that the only precaution to be taken, identified in the expert evidence, was to paint the surface with slip-resistant paint and, by appropriate inspection, maintain adequate slip resistance by painting.
Whereas Dr Cooke opined that "good practice" would have been to inspect the painted surfaces "from time to time (at least at six monthly intervals) to ensure that the painted surfaces were sufficiently textured"; in oral argument, Professor Keirnan stated that a reasonable inspection interval would have been 15 months. The standard of duty of care was to take reasonable precautions. It was not to ensure that pedestrians did not fall. Exhibit 3 included a tax invoice dated 9 May 2017 for the painting of the white rectangles on the pedestrian crossing using Australian Standard Dulux Roadmaster Line Marking paint with "anti-skid added" (Exhibit 3, pp 303 and 306). An undisputed fact was that this work was carried out about 15 months prior to the plaintiff's fall. There was no suggestion that the paint provided less than satisfactory dynamic coefficient of friction.
Whilst the plaintiff was wearing shoes, which were tendered and became Exhibit B, that were in as new condition, the shoes were not inspected by the expert witnesses and the grip of the soles of the shoes was not the subject of expert comment. Counsel for the plaintiff properly put it that all that could be taken from a layperson's inspection of the shoes was that, in this case, the plaintiff was wearing shoes which were in good condition. This followed my offering the worldly observation that one does not always find on the purchase of new shoes that they offer good traction. The parties did not cavil with this observation.
Before coming to the factual evidence which included the oral evidence of the plaintiff and viewing of the CCTV, to the extent that the Court was invited to do so by counsel, it is appropriate to observe that there was no evidence of what an inspection of the painted white rectangles of the pedestrian crossing would have found. The evidence of its condition and performance may or may not be inferred from the plaintiff's fall and the evidence of use of the pedestrian crossing without reported incident of slipping over a period of approximately one year.
Extrapolation of the numbers of pedestrians observed in the CCTV infers, and on the balance of probabilities I find, that use of the pedestrian crossing over the period of one year would approximate to 400,000 passages by persons of a wide variety of characteristics of pedestrian, of which the CCTV provides a fair sampling. Obviously, the plaintiff's fall occurred on a rainy day, and not as would be most common in Sydney weather; a dry day.
Also, before coming to the factual evidence, it is important also to record that as the parties agree, but in any event as I find, the expert witnesses did not accurately identify the place of the slip. In their Joint Report, Exhibit D, paras 5 and 22, they wrongly concluded, by agreement, that the plaintiff slipped on the unpainted concrete and not on a white painted rectangle. This error rendered much of the opinions which they expressed to be irrelevant. They wrongly agreed that the slip occurred when the plaintiff's left foot was on the unpainted concrete surface. Indeed, this was a very disappointing observation to make in the course of the hearing because Dr Cooke had not even viewed the CCTV footage at the time of his report, Exhibit C, or at the time of the Joint Report dated 13 November 2020, Exhibit D. During oral evidence, he conceded that he did not view the CCTV footage until 20 November 2020.
The plaintiff was a patently honest witness who was willing to give evidence against interest. He was born in Australia on 29 July 1980 and was almost 38 years of age at the time of the injury. He left school in year 10. On 9 June 2018, when the incident occurred, he was working as a taxi driver, as he had done since 2007. He regularly bought his coffee at Café 63, within the Roselands Shopping Centre, and it was his habit to park, as he did on the subject occasion, and use the pedestrian crossing or similar crossings on other carpark floors, to walk between his taxi and the café. About five minutes prior to the incident, he had used the pedestrian crossing to walk from his taxi into the shopping centre to buy his coffee. I am assuming taxi, he may on the occasion have been in his personal car, but it makes no difference to my findings in this proceeding as to which vehicle he was using. Against interest, he said that on his exit from the shopping centre, in the course of his return to his vehicle, and as he approached the crossing, he was looking at his mobile phone with a coffee in one hand and his phone in the other. As he approached the crossing and was on the ramp, he looked at cars. The CCTV meets with his description. He said that he felt his left foot sliding and that he tried to recover balance but shattered his right ankle in the fall and could not get up. The CCTV meets with his description also. During cross-examination, the plaintiff agreed that on most occasions he went to get his coffee he parked on the same red level and that he walked the same crossing without incident. He agreed that it had been raining for at least an hour when he used the pedestrian crossing to enter the shopping centre, and that the road was wet. But he volunteered that it was not something he held as a thought in his mind at the time. He agreed that he would have walked past the bright yellow "slippery when wet" sign on a pillar at the shopping centre side of the pedestrian crossing but "wouldn't have noticed it". Indeed, he conceded when questioned about the sign that as he walked out and past the sign, he would have been looking at the clock on his phone and not looking to his left at the sign. The plaintiff did not say that the sign was not plainly visible to him. He was a regular user of the location as a pedestrian. The sign was plainly visible to pedestrians. The plaintiff agreed that as he entered the shopping centre on his way to get his coffee, he turned right and according to the photograph evidence, that means he would have walked around or past the pillar on which the sign was placed, to his right, in that direction of travel. The plaintiff was so honest as to concede that he might have seen the sign on other occasions but did not take notice of it.
The plaintiff did not press in submissions that signage was inadequate but rather that the sign indicated the defendant's awareness that when wet the pedestrian crossing surface might be slippery. I reject the proposition that the "slippery when wet" sign is evidence that the defendant was or reasonably ought to have been aware that the white painted rectangle surface of the pedestrian crossing presented an unreasonable slip hazard when wet. The sign's presence supports no such inference in the absence of evidence of the decision to post it.
The plaintiff said that he was looking at his phone because he was focused on getting to a physiotherapy appointment at Kogarah. He was not in a hurry.
The CCTV shows that the plaintiff was walking down the ramp, but not yet on the unpainted roadway when his left foot slipped forward, causing him to lose balance and whilst falling to his left, his right ankle buckled under him. He suffered significant fractures to his lower leg. The CCTV shows that the plaintiff slipped at a point when the plaintiff's right midfoot to heel was on the yellow paint and midfoot to toe on the white paint. His whole left foot was on the white paint, except for the leading/toe quarter of his left shoe, which was on the unpainted concrete.
The CCTV shows that the plaintiff's left heel was placed first on the white painted surface and then he continued his stride forward to the ball of his foot, which was at about the very bottom of the white painted surface, or at about the margin of the unpainted concrete and the white painted surface. Whereas the plaintiff had been looking at his phone when, at the top of the ramp, by the time he reached the position of his slip and fall, he had looked up and straight ahead, indeed the CCTV footage shows a black car driving from between parked cars directly toward him. The CCTV footage strongly infers that he was watching that car and this is consistent with his evidence. The plaintiff was a person walking with normal deportment, stride and in a straight line immediately preceding his slip and fall.
In my opinion, the CCTV evidence defeats any proposition that the plaintiff failed to take adequate care for his own safety immediately preceding the incident.
As the expert witnesses did not correctly observe the location of the slip and noting that Dr Cooke wrongly described, during oral evidence, that the plaintiff placed the ball of his foot on the ground before the heel, their opinion evidence is of no assistance in the analysis of the bodily mechanism of the fall. As the expert witnesses did not measure the dynamic coefficient of friction of the white painted surface of the ramp in the location plainly shown on the TV as where the plaintiff's left foot commenced a slip forward, their opinion evidence is of no assistance in the analysis of the dynamic coefficient of friction of the subject location.
I accept the defendant's submission that the evidence upon which s 5B CLA is to be considered is the evidence of use of the pedestrian crossing by shoppers over the period of one year preceding the incident and as available on the CCTV of two hours' duration, the Exhibit 3 evidence that the white rectangle was painted with non-slip paint for pedestrian crossing application and the plaintiff's fall.
That there was no evidence of a prior report of injuries of pedestrians slipping does not, standing alone, require the conclusion that the defendant was relieved from the burden of taking reasonable precautions. That history is to be weighed in the balance of what was a reasonable response, viewed prospectively: see Simon Felice v St George Masonic Club [2017] NSWDC 276, where I referred to Jandson Pty Ltd v Welsh [2008] NSWCA 317 at 21, 23 and 25, referring to Bankstown Foundry Pty Ltd v Braistina [1986] 160 CLR 301; [1986] HCA at p 309; Drotem Pty Limited v Manning [2000] NSWCA 320.
The defendant does not dispute that it owed a duty to take reasonable care to provide a pedestrian crossing which did not present a slip hazard when wet. Whether by reference to the content of a putative duty or a consideration of breach, s 5B(1) CLA assumes what has been identified to be a "risk of harm" against which a reasonable person would have taken identifiable precautions. Further, s 5D CLA requires a finding that the negligent failure to take precautions "caused particular harm" in the sense that it was "a necessary condition of the occurrence of the harm" (Springfield v Duncombe [2017] NSWCA 137 per Basten JA at 8). The relevant risk of harm was that a pedestrian walking in the casual, moderately attentive manner of a customer of the shopping centre might slip when the pedestrian crossing was wet and might suffer harm.
The only evidence upon which the mechanism of the fall can be assessed is by viewing the CCTV footage, absent knowledge of the grip of the soles of the plaintiff's shoes and of the dynamic coefficient of friction of the white painted surface of the pedestrian crossing at a stage 15 months after being painted with appropriate anti-slip added pedestrian crossing paint. During concurrently taken oral expert evidence, Dr Cooke was not challenged on his opinion that good practice required testing of the grip texture of the paint at six-monthly intervals, nor was Professor Keirnan challenged on his opinion that inspection at 15-month intervals was reasonable. On that evidence, the circumstance of the defendant not being notified of any incident of slip in the preceding 12 months is relevant to assessment of the defendant's prospective duty to take care because, on balance, the evidence indicates that the white painted rectangular surface upon which the plaintiff slipped was approximately of age that inspection ought reasonably to occur.
The evidence does not support, on the prospective basis, that inspection was overdue. Again, there was no evidence that the white painted rectangle would not have met the appropriate standard of friction had it been inspected. In saying this, I acknowledge that there is relevance in the event of the plaintiff's fall and no doubt the plaintiff would respond by pointing me to that event. Dr Cooke reluctantly conceded that such extensive use without reported incident inferred the surface was reasonably safe, save that he maintained that Australian Standards are based on one million normal passages and therefore 400,000 pedestrian passages did not satisfy the Australian Standard's scientific test. Of course, the obvious mathematical observation is that the one in one million does not need to be the last, it might be the first or the 400,000th passage. On further questioning from me, seeking to clarify the significance of Dr Cooke's point, he expanded this opinion by acknowledging that because the users were not all normal, in that they included the wide range of physical capacities of shop customers described in these reasons above, the positive evidence of inference of 400,000 passages without reported incident of slipping was a stronger positive inference than would arise from 400,000 passages by normal users. I consider this an appropriate concession because it logically followed his mathematical and scientific approach to the point.
The defendant did not dispute that the risk was foreseeable within the meaning of s 5B(1)(a) CLA. Given that serious injury is a well-known consequence of persons falling and slipping on wet surfaces is, in my opinion, consideration of the degree and probability of its occurrence establishes that the subject risk was not insignificant within the meaning of s 5B(1)(b) CLA.
On the whole of the evidence, a reasonable person in the position of the defendant would have taken the precaution of maintaining the non-slip quality of the white rectangular painted surfaces of the pedestrian crossing to a coefficient satisfying class W of table 1 HB 197:1999. The evidence of the use of the 330 pedestrian crossing by persons, including elderly with walking sticks, during the two hours of the CCTV, and the extrapolated evidence of incident report free use by not less than 400,000 people over the preceding year; in the absence of evidence of dynamic coefficient of friction of the surface itself, or of the grip of the plaintiff's shoes when the surfaces were wet; persuades me against the proposition that evidence of the defendant's slip alone is sufficient to find that the surface presented a slip hazard in regard to which the defendant failed to take reasonable precautions within the meaning of s 5B(1)(c) CLA.
Of course, the defendant bore no onus of proof. So, this is to say that the single incident of the plaintiff's fall does not persuade me to find that the surface presented a slip hazard in that regard. In this, I find useful guidance from Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 per Priestley JA at [5], Powell JA at 10(a) and Heydon JA at [55] to [56]. For the purposes of s 5B(2) on consideration of that evidence, in my opinion, the plaintiff has failed to prove on the balance of probabilities that a reasonable person in the position of the defendant would have taken any precaution against the risk of harm. Specifically, the defendant did not breach its duty of care by not testing the friction performance of the white paint before the plaintiff's fall.
In this, I consider that the probability that the event of harm would occur was very low. I consider that the likely seriousness of the harm could be significant and the burden of taking precautions to avoid the harm, being only to repaint with non‑slip paint, would not have been great. For the purposes of s 5D CLA, on the same evidence of history of use without reported incident of slipping, the CCTV evidence of the range of persons using the pedestrian crossing between parked cars and the shopping centre, and the evidence only of the plaintiff's fall and injury, I am not satisfied that the mechanism of the fall was caused by inadequate friction coefficient of the white painted surface. The extensive evidence of safe use by shoppers is evidence of opposite effect to acceptance of that factual proposition.
The plaintiff pleaded res ipsa loquitur. The cause of the occurrence was known to be the plaintiff's shoe slipping on the white painted rectangle surface of the pedestrian crossing. That cause being known, that principle of common law had no application but the question became whether the evidence revealed that occurrence was caused by the defendant's negligence: Schellenberg v Tunnel Holdings Pty Ltd (1999) 200 CLR 121; [1999] HCA 18. This is because a person wearing shoes in near new condition might slip on the non-slip paint of a pedestrian crossing when the surface is wet, even though the friction quality of the white painted surface met class W, table 1 HB197:1999 standard.
At para 14 of their Joint Report, the experts explained that the recommendation in table 3 of HB197:1999:
"Includes an unspecified factor of safety to allow for loss of friction of the new surface over time and for variables of pedestrian behaviour and footwear characteristics. This is apparent from the descriptions of slip risk in cap table 1 of HB197:1999."
Those standards, as acknowledged by the experts in the Joint Report, at para 16 described dynamic coefficients of friction as "safe" and as "safe for normal stride and pace and moderate attention". They do not specify a standard by which a pedestrian walking, as the plaintiff did, will not slip. Over objection from the defendant, I admitted para 20 of the Joint Report, which stated:
"Based on the CCTV footage, the plaintiff was paying 'moderate attention'. Accordingly, if the pedestrian crossing surface provided adequate friction, pedestrians paying the level of attention exhibited by the plaintiff would probably not have slipped."
Firstly, that statement by the experts is of diminished persuasion because it is not an opinion on the plaintiff's fall. The experts did not consider slipping from the painted white rectangle. It is a broad proposition, based on the statistics and science behind the Australian Standards discussed by the experts in the report.
Dr Cooke described that science as assuming one slip per million normal pedestrian passages. Again, that comment does not contemplate the grip performance of the plaintiff's shoes and cannot be assumed to contemplate other causes such as deportment and ergonomics of the plaintiff's foot placement or contamination of the plaintiff's shoe sole, or of the white painted surface. In my opinion, a pedestrian slipping on a wet painted pedestrian crossing rectangle is not an "unexplained occurrence [that] would not ordinarily occur without negligence", even assuming the surface met the class W standard: see Schellenberg case supra per Gleeson CJ and McHugh J supra at paras [39] to [43] and [51], and Hayne J at [135] to [136].
For the reasons given above, I have found that there is insufficient evidence to support the finding that the cause of the occurrence was due to the defendant's negligence.
[2]
COSTS
The defendant seeks a special order as to costs on the bases of two letters in the form of Calderbank offers, the first dated 21 September 2020 and the second 5 November 2020. The plaintiff opposes a special order as to costs. The opposition argument by the plaintiff as to both letters is that the offer was not a genuine offer of compromise given the agreed quantum of damages at $136,810. As to the second letter only, there is a second point of opposition, that being that the letter offered only two business days before it expired within which the plaintiff could accept the offer. I will deal with the letters separately.
As at the date of the first letter, 21 September 2020, for the reasons I have given in the principal judgment, contemplating the inadequacy of the expert opinion evidence and also because, as at 21 September 2020, the Joint Conference of Experts had not even occurred; the state of preparation of the matter was such that in reality, the plaintiff having slipped whilst wearing as‑new shoes, was not a case of such minimal prospect from the plaintiff's point of view that it bordered on being unarguable. In my opinion, the walk away offer forgiving the defendant's estimated costs of $27,000 was not genuine. I would not therefore be disposed to make a special order for costs on the basis of the offer of compromise expressed in the letter of 21 September 2020.
As to the second letter, the Joint Conference of experts had still not occurred, but this letter provided the opportunity for the plaintiff to accept $45,000 inclusive of costs in final settlement of the proceedings. The letter properly referred to the Court of Appeal decision of Garzo v Liverpool/Campbelltown Christian School Ltd & Anor [2012] NSWCA 151 and quoted the relevant passage from that case, dealing with the single event of the plaintiff's fall not establishing there that the pedestrian crossing was slippery. There was obvious assistance of the decision in Garzo, given my reasons for my decision on liability in this case. In all respects, I consider the letter of 5 November 2020 to have advanced a genuine offer in terms of the quantum against the plaintiff's prospects in the case. I am, however, not disposed to make a special order for costs on the basis of the letter of 5 November 2020 because, in my opinion, two business days was inadequate notice and unreasonable.
I expressed this view as a preliminary one in order to give the parties the opportunity, if they sought, and particularly if the defendant sought to press its application, to engage in evidence such that the offer might be considered with real evidence of the circumstances of the opportunity for the plaintiff to accept the offer within such a short period.
After adjourning for a short period, for the defendant to take instructions, the defendant did not seek the opportunity to adjourn the application to a later time so as to put on evidence. I therefore confirm my preliminary view and I am not disposed to make a special order as to costs on the basis of the Calderbank offer advanced by email on 5 November 2020.
[3]
ORDERS
I make orders as follows:
1. Judgment for the Defendant against the Plaintiff.
2. Plaintiff to pay the Defendant's costs of the proceedings.
3. Exhibits to be returned.
[4]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 17 February 2021
Parties
Applicant/Plaintiff:
Zaidan
Respondent/Defendant:
Vicinity Centres PM Pty Limited t/as Roselands Shopping Centre