Maria Madaffari v Rydges Hotel Ltd T/As Lakeside International Hotel [1996] ACTSC 91 (30 August 1996)

SUPREME COURT OF THE ACT

MARIA MADAFFARI v. RYDGES HOTEL LTD t/as LAKESIDE INTERNATIONAL HOTEL
No. SC821 of 1994
Number of pages - 9
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Negligence - personal injuries claim - "slippery floor" case - standard of care - plaintiff slipping on dance floor at reception in hotel - assessment of damages - no issue of principle.

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402

HEARING

CANBERRA, 25 July 1996
30:8:1996

Counsel for the Plaintiff: Mr R. Mildren

Instructing solicitors: Barker Gosling

Counsel for the Defendant: Mr G. Stretton

Instructing solicitors: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:
There be judgment for the plaintiff in the sum of $135,783.92.

DECISION

HIGGINS J On 6 February 1993, the plaintiff and her husband were guests at a large wedding. The reception was held at the Lakeside Hotel (now Rydges), owned and operated by the defendant.

2. The reception was held in the main ballroom on the first floor. There was a band in attendance and a portable dance floor had been laid down to enable guests to engage in dancing. Tables for guests were arranged around the dance floor on the carpeted area.

3. The plaintiff did not engage in dancing but had crossed the floor on one occasion before the incident in question on her way to the toilet.

4. At about 1.00am on 7 February 1993, the plaintiff and her husband decided to leave. As they left they said "goodbye" to various people they knew. As she began to cross the dance floor, the plaintiff's attention was drawn to friends coming towards her. As she walked towards them, she had gone, she said, only about two metres, when her right foot slipped. It caused her right leg to twist under her as she fell. As she did so, there was a loud "crack". She screamed out, "I think I broke my leg". She had.

5. A large number of people came to her aid. Her shoes were removed. Her right foot swelled. She was placed on a chair.

6. As soon as possible thereafter, she was taken to Woden Valley Hospital where Dr Reginald Kitchin, an orthopaedic specialist, operated the next day. She was, of course, in considerable pain over this time. The pain was controlled by analgesics.

7. She remained in hospital until 13 February 1993. At that time she was only able to walk with the aid of crutches. She graduated shortly afterwards to two walking sticks.

8. The plaintiff was virtually confined to bed for six weeks after 13 February 1993. She needed assistance even with showering. Her husband provided that assistance. He had retired some years before. His assistance was also necessary for attendance at medical appointments.

9. Progress was not good. Over the following eight weeks, pain and discomfort worsened. Finally, in June 1993, a further operation was performed to reset the leg. That was painful and resulted in another week in hospital. There was some improvement as a result.

10. Since then, the plaintiff has had many medical consultations. Her leg has remained weak and painful. She stopped using two sticks after eight to nine months. Now she uses one only, more as a precaution.

11. Because standing for lengthy periods causes pain and swelling, she sits, for example, when cooking. Heavy housework is now beyond her. She has a limp and whilst told to walk for exercise, finds about two kilometres is her capacity.

12. The plaintiff is embarrassed about operative scars on her leg. She usually wears slacks to conceal them. She wears flat-heeled shoes for greater stability lest her leg give way. She now takes pain killers regularly, though this is limited by an unrelated diabetic condition she has subsequently developed.

13. These consequences are serious. The defendant, however, denies liability for them. Alternatively, it claims that the plaintiff was contributorily negligent.

Liability
14. There are two possible causes of the plaintiff's fall which can be eliminated at the outset. Her shoes, which she was wearing when she fell, were tendered. They were high-heeled court shoes but not in any way remarkable. The soles were in good condition, indeed, almost new. They are just the sort of shoes the defendant's employees would have expected women at the reception to be wearing.

15. The second is alcohol consumption. The plaintiff did not drink alcohol. She drank only lemon squash. That was her unchallenged evidence.

16. Was the cause of her fall then, some abnormal condition of the floor, as urged by her counsel, or simply an unfortunate accident as urged by counsel for the defendant?

17. The plaintiff noticed, before her fall, that the dance floor seemed "very shiny". It did occur to her that it might be slippery but she did not expect to fall. When she had first walked on it, before the occasion on which she fell, she had walked slowly. She agreed that she could have avoided walking on the dance floor and instead got to wherever she was going via the carpeted areas. She had not seen any other person fall that night on the floor, although she heard later that they had.

18. The plaintiff's husband, Antonio Madaffari, also noticed that the dance floor was "very shiny" but he had not slipped on it. He went on a view of the flooring with solicitors and an expert in October 1995. It was his opinion that the flooring he was then shown was less shiny than that laid down for the reception in February 1993. He had not seen anyone else fall.

19. Other guests gave evidence, however, that they had slipped and fallen.

20. Mrs Josefina Zappia had crossed the floor to say "hello" to friends on the other side of the room. Approximately three metres from her table she slipped and fell. She was helped up and thereafter stayed on the carpet area. She twisted her arm but it was all right after a few days. She did not complain to the hotel management. She could not be sure if there was anything on the floor but she noticed nothing spilled on it.

21. Mrs Adriana Madaffari, the plaintiff's daughter-in-law, gave evidence that her little daughter went onto the dance floor. She went to retrieve her and her own feet slipped, though she did not fall. Mrs A Madaffari was, thereafter, very cautious in walking on the floor and felt "very uneasy" on it. Mrs A Madaffari was a young woman who had been to "many dances". To her, the floor seemed "very slippery" and "highly buffed".

22. She said that she did mention to the plaintiff that she had slipped, to warn her about the state of the floor. That was at 8.00 or 9.00pm. However, whether or not the plaintiff heard her is not clear. Mrs A Madaffari did not mention her concerns about the floor to any member of the Lakeside staff.

23. Mr Frank Trimboli was the next witness. He had crossed the floor to go to the bridal table to deliver a present. His right foot slipped forward and he fell to his left side. He suffered a sore leg for a little while thereafter. He observed that the floor was shiny and "greasy".

24. He observed the plaintiff had fallen about seven or eight minutes later, a little way from where he had fallen earlier. He had seen, he said, two or three people fall but had not paid much heed to it. When asked to identify the others by Mr Stretton, counsel for the defendant, he referred to a Mr Staltari. No doubt eager for a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 point, Mr Stretton asked where that gentleman lived. Mr Trimboli said "Red Hill".

25. Mr Stretton should really have asked where he then was. He was, in fact, the next witness. He had crossed a corner of the dance floor on the way to see a friend. He slipped and fell backwards. His back and right hip were bruised. He did not report that to management as he suffered no serious harm. He denied he had tripped on the edge of the floor.

26. Indeed, one would have expected the edging not to be conducive to guests tripping on it.

27. Before turning to expert evidence, it is appropriate to consider the evidence of Mr Richard Holt. At the time, he was the functions manager at the Lakeside. The same dance floor had been used from February 1989 until 1995. It comprised one metre segments which locked in together. It was assembled and disassembled for use one to two times weekly.

28. Before this wedding reception, he said, he had been unaware of anybody slipping and falling on the floor. Further, he was not aware of anybody else slipping and falling subsequently. He left the Lakeside in 1995. He had not been informed of anyone slipping or falling before the plaintiff did. He did have it drawn to his attention that the plaintiff had done so.

29. He was asked how the surface of the floor was prepared for use when assembled. He said that no special cleaning was undertaken. It would be swept only. He had not noticed anything unusual about the floor. He did check it, presumably visually, for signs of spillage or marks. He did not know of any polish being applied to the floor. He believed it was never polished.

30. Mrs Madaffari had retained the shoes she had been wearing but had not used them since her fall.

31. Dr Adams, an ergonomist called by the plaintiff's counsel, had cleaned the sole of one of those shoes for test purposes. However, there is a substance on the other, present after the fall, but not before. Dr Adams remarked that the same substance was on the sole of each shoe before he cleaned one of them. No analysis of the substance in question has been done. It has, however, a "waxy" appearance and feel.

32. Dr Adams inspected a section of the flooring by arrangement with the defendant on 23 October 1995. The plaintiff and her husband attended also. Dr Adams performed slip tests on it.

33. Dr Adams advised that the general standard for a level floor surface, to be reasonably safe for walking would be expressed as a coefficient of friction of static 0.6 or dynamic 0.5. The latest standard, he said, regarded a dynamic coefficient of friction of 0.4 as "safe".

34. The surface presented was tested by Dr Adams "as found" and also after spraying it with tap water. The relevance of the later test would have been apparent if the surface was sprayed so as to clean it. However, it was tested wet. As it was not suggested that the subject surface was "wet", the relevance of this test escapes me.

35. Dr Adams chose to use three sole types to find their respective coefficients of friction with the floor surface "as found". I will set out the table he compiled,

Floor Dry
Static Dynamic
Worn composition resin sole 0.54 0.35
Mrs Madaffari's own shoe 0.36 0.26
Safety boot with composition 0.92 0.84
rubber safety tread

36. As a result, Dr Adams characterised the first category as "marginally hazardous" and the second as "hazardous".

37. At first blush, that might be thought to warrant an adverse finding in respect of the floor assuming it to have been no less slippery than "as found". However, it transpired that this presentation was seriously misleading.

38. The defendant produced a report from Mr Ian Hutchings who tested the same floor section against the standard. The purpose of the standard is to define the minimum coefficient of friction for a pedestrian surface.

39. Mr Hutchings pointed out that the standard was judged against the resistance of a standard "slider" surfaced with a substance known as "4S Rubber". Though Mr Hutchings did not test for the static coefficient of friction, he registered minimum dynamic coefficients of friction at 0.52, 0.43 and 0.58 with mean values of 0.59, 0.59 and 0.63. These were significantly above the relevant standard.

40. In cross-examination, Dr Adams conceded that if he had used the 4S Rubber surfaced slider, his results would have exceeded the minimum slip resistance for a pedestrian surface by a considerable factor.

41. His evidence had created the impression that the floor surface was "hazardous" because the plaintiff's shoes, if they had represented the standard, would fall below it. However, they do not. Those who set the standard doubtless did so in the full knowledge that not all persons walk about in "4S Rubber" soled shoes. However, that set the objective standard for the safety of the floor surface for normal pedestrian traffic.

42. To my mind, the plaintiff's case was ill-served by Dr Adams' misleading testimony. I reject as ill-founded the reasoning he used to advance the hypothesis that the dance floor was unsafe for ordinary pedestrian traffic. He should have reported that the floor surface, as he found it, was safe for usual pedestrian traffic.

43. The plaintiff's case would have been better served by an analysis of the "waxy" substance adhering to the soles of the plaintiff's shoes.

44. Mr Holt had denied the floor surface was ever cleaned. I simply cannot accept that. It was used week in and week out, one or two times per week. It had been used by people with a variety of shoe soles and, no doubt, a variety of substances adhering to them. Drinks and food would, from time to time, be spilled on it. Some substances would brush away. Others would require mopping. If the latter, what sort of detergent would be used? Dr Adams does point out that non-slip detergents or polishes are available. There are also those that will create an excessively slippery surface.

45. That the floor had been treated with an unusual detergent or polish, seems to me to be indicated by a number of factors,

. The surface was noticeably very shiny and seemed slippery to
guests;
. Six guests actually slipped on the floor; four of them,
including the person not known to Mr Trimboli, fell down;
. No such falls had occurred in Mr Holt's experience either
before that night or after it;
. There was a waxy substance on the soles of the plaintiff's
shoes after the fall.

46. It seems to me to follow, therefore, on the balance of probabilities, that some zealous member of the cleaning staff of the defendant, without consulting Mr Holt about it, decided to wash or polish the dance floor before use without ensuring that a non-slip polish or detergent was used. The residue of that detergent or polish adhered to the plaintiff's shoes. Of course staff, no doubt wearing rubber soled shoes and not shoes such as the wedding guests would have been wearing, would not have been expected themselves to notice the unusual danger presented by the state of the dance floor.

47. It follows that the defendant is liable for the injury suffered by the plaintiff. It would have been a simple matter, before each function, to ensure that the floor was cleaned so as to remove any excessive slipperiness. Dr Adam's report, if the Court needed it, highlights the simplicity of ensuring that the floor had not become excessively slippery.

48. I should also add that Mr Holt's evidence, along with the evidence of the appearance of the floor and the width of the area upon which guests slipped and/or fell, persuades me that it was not an adventitious spillage by a careless attendant or guest which led to the plaintiff's fall. That would not have escaped notice from Mr Holt or his staff.

49. The state of the floor was not something the plaintiff was responsible for. She was entitled to assume she would not slip and fall on it without some unreasonable act on her part. There was none. I am not satisfied that she was guilty of anything more than being momentarily distracted by friends and thus placing her feet less gingerly than otherwise.

50. That is not contributory negligence.

51. There will be a verdict for the plaintiff.

Damages
52. I have outlined the injury to the plaintiff and its consequences. The medical evidence demonstrates that on 7 February 1993 the plaintiff suffered an oblique fracture of the lower third of the right tibia and fibula.

53. Dr Kitchin set the fracture with various nails and screws. He noted the fracture had not united and operated again on 16 June 1993. On 16 December 1993 he noted union had finally occurred.

54. The plaintiff's suffering and distress was justifiably great throughout this period.

55. Thereafter, Dr Peter Hannaford took over the management of the plaintiff's orthopaedic difficulties. He noted continuing serious pain and discomfort. This was sufficiently serious that he operated on 17 November 1994 to remove a nail and two screws. There was some gradual improvement.

56. That improvement has been limited by a number of factors.

57. On 7 July 1995, Dr Hannaford noted a "vicious cycle" of disuse, wasting and pain.

58. The plaintiff was referred by Dr Voon, her general practitioner, for physiotherapy. By 24 August 1995 she was noted by him to be able to walk without a stick.

59. Nevertheless, pain was noted to be persisting. On 28 November 1995, degenerative changes were found. By January 1996, Dr Voon reported findings of "mild osteoarthritis" in the right ankle joint with mild loss of cartilage on the lateral side of the ankle mortice.

60. Thus, although there has been marked improvement in mobility and stability, the plaintiff remains significantly disabled. Her pain has continued fairly constantly and will not improve. There is a risk of worsening due to the onset of osteoarthritis.

61. Taking account of the plaintiff's life expectancy of approximately 26 years, I assess general damages at $48,500.00. I attribute $30,000.00 to the past, most occurring in the first 2 1/2 years following the accident. I award $2,150.00 for interest thereon accordingly.

62. I note out-of-pocket expenses are agreed at $26,133.92. Most of that is referable to the various operations. It is agreed that none has been the subject of any contribution from the Health Insurance Commission.

63. So far as the Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 claim (or should it now be Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327) is concerned, the parties are agreed that the appropriate rate to apply is $12.00 per hour.

64. Since Van Gervan (supra), it is no longer appropriate to view additional services rendered by loved ones as excluded from consideration or to be compensated for at a lesser than commercial rate.

65. The evidence in this case is far from precise but it is clear that for the 2 1/2 years since the accident, until her most recent operation and its immediate aftermath, the plaintiff was in constant need of assistance, although she did not require anything like 24 hour attendance. I have to judge the degree of assistance she needed which will then be compensated at the agreed rate.

66. For at least 14 weeks after her release from hospital, she could do nothing and needed personal attendance from time to time. She had to be driven to medical appointments. However, after 14 weeks, she was able to make a limited contribution to housework compared with previously. I would assess her needs as not less than 1-2 hours daily at this time.

67. Since then, her need has, I believe, generally decreased to, perhaps, one to two hours per week. That is not to say that in doing what she now does, the plaintiff performs her household tasks, which, previously, she enjoyed and took pride in, with the same comfort as before. Nevertheless, even with discomfort and some inefficiency, she can cope without the need for assistance.

68. Thus, I believe it is appropriate to allow for approximately 1 year 9 months assistance commencing at 40 hours per week reducing to 7 hours. Then at 7 hours per week for a further period of a little over 8 months and thence and for the future at 2 hours weekly. I award $31,000.00 for the past. For the future, I award $28,000.00, after reduction for contingencies.

69. I was invited to make no allowance for future or past loss of earning capacity. As a result, I do not do so.

70. It is a moot point whether past Griffiths v Kerkemeyer (supra) should carry interest at least at the rate approved in Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402. However, as interest was not sought, I make no allowance for it.

71. In the result, damages are assessed as follows,

General damages 48,500.00
Interest thereon 2,150.00
Out-of-pocket expenses 26,133.92
Griffiths v Kerkemeyer -
(i) Past 31,000.00
(ii) Future 28,000.00
Total $135.783.92

72. That sum seems appropriate and I direct that judgment be entered accordingly.