Jennings v Westfield Shopping Centre Management Co (ACT) Pty Limited [2010] ACTSC 11 (19 February 2010)

Last Updated: 16 March 2010

ROSEMARY FRANCES JENNINGS v WESTFIELD SHOPPING CENTRE & ANOR

[2010] ACTSC 11 (19 February 2010)

NEGLIGENCE – occupier’s liability – shopping mall – personal injury – whether delegation to cleaning contractor absolves occupier of liability to entrant against cleaner

NEGLIGENCE – personal injury – shopping mall – claim by entrant against cleaning contractor – circumstances in which contractor liable

DAMAGES – personal injury – slip and fall in shopping mall – injury to shoulder – supraspinatus tear – blow to hip resulting in trochanteric bursitis – paediatric nurse aged 59 at injury – loss of earning capacity – no issue of principle

Civil Liability Act 2002 (NSW), ss 16 and 17,

Cairns v Woolworths Ltd [2005] ACTSC 95

Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241

Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16

Woolworths (WA) Pty Limited v Berkeley Challenge Pty Limited [2004] WASCA 196, (2004) 28 WAR 540

Allcorp Cleaning Services Pty Limited v Fairweather (NSW Court of Appeal, 29 June 1998, unreported)

P & H Property Service Pty Limited v Branigan [2008] NSWCA 195

Bullock v London General Omnibus Co Ltd [1907] 1 KB 264

No. SC 710 of 2008

Judge: Master Harper

Supreme Court of the ACT

Date: 19 February 2010

IN THE SUPREME COURT OF THE )

) No. SC 710 of 2008

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ROSEMARY FRANCES JENNINGS

Plaintiff

AND: WESTFIELD SHOPPING CENTRE MANAGEMENT CO (ACT) PTY LIMITED (ACN 008 612 002)

First defendant

REFLECTIONS CLEANING PTY LIMITED

(ACN 119 493 382)

Second defendant

ORDER

Judge: Master Harper

Date: 19 February 2010

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff against the second defendant for $114,657.22.

2. Judgment be entered for the first defendant.

1. On 14 June 2007 at 10.30 am the plaintiff went to the Westfield Shopping Centre, familiarly known as Belconnen Mall, to go to the bank. She was on her way home after finishing her usual nightshift as a registered nurse in the paediatric ward at the Canberra Hospital. It had been raining and may still have been raining when she arrived at the Mall. She parked her car and walked to an upper-level entrance with automatic sliding glass doors on the western side of the building. Not far in from the doors she slipped and fell.
2. She brings this action against the first defendant, Westfield Shopping Centre Management Co (ACT) Pty Ltd, as occupier of the premises, and the second defendant, Reflections Cleaning Pty Ltd, as the cleaning contractor.
3. The floor of the common area of the shopping centre, where the plaintiff fell, is of terrazzo tiles of the type commonly found in modern shopping malls. The unchallenged evidence is that the tiled floor provided adequate traction when dry, and was not intrinsically hazardous. The mall was built in 1978 and has operated continuously since then. It is one of the largest shopping malls in Canberra. It is open between 9.00 am and 5.30 pm seven days a week and the evidence is that it is visited each week by more than 275,000 people. It is of 74,000 square metres in floor area over three levels, with 206 tenancies, including department stores, shops, banks, cinemas and takeaway food outlets.
4. It is common ground that just inside the sliding doors there was a recessed nylon mat designed and intended to catch dirt and water brought in on the soles of the shoes of customers. There is some disagreement as to whether there was, a little further inside the building and approximately adjoining the recessed mat, a larger movable mat which had been put in place by the cleaning contractor because of the wet conditions.
5. When the plaintiff arrived there were few if any customers about. An employee of the second defendant, Mr Goddard, was working somewhere in the vicinity. He made a handwritten record of the incident on the same day. Counsel for the second defendant tendered a photocopy which unfortunately was cut off a little in the left margin. It is reasonably clear to me that the note reads as follows:

James Goddard cleaner at Westfield Belconnen was mopping the floor at the ANZ entrance and (placed?) a wet floor sign in place next to the cleaning trolley and at 10.35 am a lady slipped over as I was attending to the entry floor. She slipped on the left hand side of the entry as I had my back towards her mopping the right side of the entry just behind the wet floor sign. I then proceeded to ask if she required any form of assistance. The lady replied, “No I be okay thanks”. I then took her details to make a report and directly saw security (Michael) he then came and spoke to me and the lady and made a report.

14.6.07

6. I am satisfied that the Michael referred to was Michael Sturgiss, also an employee of the second defendant.
7. In late November or early December 2008 an investigator engaged by the solicitors for the first defendant went to the Mall, took some photographs and spoke to Mr Goddard and Mr Sturgiss. The investigator had been furnished with a copy of a then recent statement by Mr Sturgiss. The statement was not tendered and Mr Sturgiss was not called to give evidence. The investigator was not identified by name.
8. The investigator reported that Mr Goddard and Mr Sturgiss told him (or her) that it had been raining at the time of the incident, and had been raining lightly for several hours. Mr Goddard told the investigator that during periods of wet weather the cleaners paid particular attention to the external entrances to ensure that any water carried into the centre on the soles of the shoes of customers was promptly mopped up so as not to cause a slip hazard. Mr Goddard told the investigator that he had arrived at the entrance a few minutes prior to the incident and had placed a yellow “wet floor” sign on the floor, in a location which can be seen in photographs attached to the report. His blue and yellow cleaning trolley was nearby. At the time of the incident he was mopping water from the floor, standing about two or three metres inside the entrance with his back towards the sliding doors. His recollection was that the floor had been only slightly damp at the time, as he had mopped up most of the water which had been walked in by pedestrians through the entrance.
9. Mr Goddard told the investigator that as he was mopping the floor he saw movement to his right and turned to see the plaintiff lying on the floor about a metre from him. He helped her to her feet and asked if she needed any help. She declined and said that she would be all right. She then walked into the nearby credit union office. Mr Goddard confirmed that the floor where the plaintiff fell was damp. He said that he had mopped water off the floor only a few seconds before the accident. He had used his two-way radio to call the central office and report the accident. He had then finished mopping the floor and put the “wet floor” sign in his trolley. A minute or so later Mr Sturgiss had arrived on the scene. As Mr Goddard was telling Mr Sturgiss about the accident, the plaintiff had walked out of the credit union. He and Mr Sturgiss had then spoken to her and obtained her details so that they could complete an accident report form. The plaintiff had then left the centre.
10. Mr Sturgiss told the investigator that he had attended the accident site in response to a radio message. By the time he arrived at the site Mr Goddard had finished mopping the floor and put the warning sign back into his trolley. Mr Sturgiss recalled that while he was talking to Mr Goddard, the plaintiff had walked out of the credit union and Mr Goddard had pointed her out to him. Mr Sturgiss had approached her and asked if she needed medical assistance. She had told him that she had a sore hip and arm but had not requested medical assistance. He had asked the plaintiff if she had seen the warning sign and she had told him she had not.
11. There were two other relatively contemporaneous documents in evidence. One was a computer printout. It appears to me to be a Westfield rather than a Reflections document. It was created on 19 June 2007, five days after the incident. It includes a statement in the following terms:

Rosemary Jennings slipped and fell, south side level three near the ANZ entry on trace water left by cleaner who was mopping entry. She walked around the wet floor signs that were in place.

12. There is no evidence as to the author of those words, and they may be based substantially on hearsay or speculation. They are of no real assistance to me.
13. The other document is a personal injury claim notification form signed by the plaintiff on 27 June 2007, about two weeks after the accident. The plaintiff saw her solicitor for the first time on that day and I accept that the form was completed in the solicitor’s handwriting, based on information given to him by the plaintiff on that day. The form includes a description of the accident in the following terms:

I entered the store on a wet day. I was wiping my feet on the mat. I noticed a gentleman mopping. I checked to see if the floor was dry. I thought the floor was dry, stepped on it and slipped. I noticed no sign warning me.

The oral evidence

14. The plaintiff’s evidence is that she walked from where she parked her car to the entrance door of the mall under eaves, which meant that the surface she walked on during her approach was dry. She walked in through the automatic doors. She stood on the recessed mat and wiped her feet. She was wearing flat nursing shoes with a rubber tread non-slip sole. Her recollection was that there was no other mat. She stood on the mat for some seconds, wiping her feet. She noticed a cleaner working with a mop, four or five metres away. She remembered thinking to herself, “Somebody is going to fall over here”, being aware of the wet day and the mopping. She did not see a yellow “wet floor” sign or a cleaner’s trolley. She looked at the floor to her right to check it, and it looked dry. She stepped off the mat and immediately slipped. Her foot went from under her and she fell to the floor on her right side, breaking her fall with her outstretched right arm. As she lay there she realised that the floor felt damp, and that her clothes were also damp where they had been in contact with the floor. The floor did not look damp, however.
15. She said that the cleaner came over and asked if she was all right. He offered to help her up, which she declined. She got up in what she described as an ungainly fashion. She went into the credit union and sat down for a few minutes. She attended to her banking business and walked out into the common area again. A security guard spoke to her, saying he had noticed she was limping. She was offered a wheelchair and an ambulance but declined. She gave her name and date of birth on request, and was advised to ring the centre management when she got home.
16. She had been back to the Belconnen Mall on many occasions since. She had noticed over time that on wet days the practice seemed to be to place a large grey mat inside the entrance doorway. She said that there had been no such mat there on the day of her fall.
17. The cleaner she had seen when she entered the Mall had been on her left. The credit union she had come to visit was some little distance on her right.
18. The plaintiff agreed that yellow warning signs were regularly used at the Mall, but she was adamant that there had not been one within her field of view on the day of her fall.
19. She was asked in cross-examination whether she had been given the name of the security guard who had spoken to her. She said that he was wearing a name badge with the name “Michael” on it but she was unaware of his surname.
20. Counsel for the first defendant, Westfield, called no oral evidence. There was no suggestion that there was any employee of Westfield in the vicinity at the time of the plaintiff’s fall or indeed from the time she entered the Mall until she left to go home.
21. Counsel for the second defendant, Reflections Cleaning, called Mr Goddard as a witness. He was still working as a cleaner with Reflections at the time of the hearing. His evidence placed the plaintiff in a somewhat different position to her own evidence, and placed him in a different position also. His evidence was that he was “pretty sure” that on the day of the accident there was in place a black mat, shorter and wider than the grey mat shown in the photographs taken by the investigator, at the time of the accident. He said that these mats were brought out every time it rained, and it was the responsibility of the cleaners to attend to this.
22. His evidence was that on the day of the fall he had received a radio call to attend the entrance to clean up some muddy footprints. It was standard practice to respond to such a call within five minutes and he did so on that day, going to the entrance with his blue trolley. The trolley was loaded with all of his equipment including signs, mops and a bucket.
23. He said that the first things he did were to put the “wet floor” sign out, and to block the area off with his trolley as best he could. I have the impression that he was here describing his usual practice when responding to a radio call, rather than his specific recollection of the events of the day of the plaintiff’s fall. Asked to describe the cleaning process, he said that he started with a wet mop and mopped the area clean. He then used a dry mop, until the area was dry. He said that he had almost finished this process when he became aware of the plaintiff’s fall. He had had his back to her but had heard her slip.
24. In cross-examination by counsel for the plaintiff Mr Goddard conceded that there was still a little water on the floor in the area he had mopped. He was asked whether he accepted that he had not mopped it up adequately, and he answered, “I suppose so”. He said that he was doing the best he could on a rainy day, and that at most the floor was damp rather than wet. He agreed that the mats which were put out in wet weather were provided by Westfield, although it was part of his job as a cleaner to put them out.
25. Counsel for Westfield tendered a copy of the cleaning contract. The contract had been signed in October 2004 but was, I accept, still in force at the time of the fall. A specification annexed to the contract defined the common mall area so as to include the position where the plaintiff fell. The obligation of the cleaning contractor was to keep the area clean and dry at all times and “within the slip coefficient mandated in the Australia Standards [sic]”. There was no evidence about the application of any Australian standard.
26. A further clause in the specification required the cleaning contractor to keep undercover areas within mall entries clean and dry. Entry mats were to be clean at all times and correctly placed and checked each day.
27. The contract included a clause whereby the contractor agreed to indemnify Westfield in respect of liability for personal injury “arising out of or in connection with or caused by the performance of the services”. Counsel for Westfield conceded that as a matter of law the clause would not afford indemnity to his client in the event of a finding that his client had been negligent and that his client’s negligence had been a cause of the plaintiff’s injury. Absent such a finding, the plaintiff would not be entitled to succeed against the first defendant. The indemnity clause is therefore irrelevant for the purposes of the present proceedings.

Factual findings - liability

28. The plaintiff was an impressive witness. I generally accept her evidence. I am left in some doubt as to whether or not there was a second mat inside the entrance doors, in addition to the fixed recessed mat. The plaintiff says there was not. Mr Goddard thinks there was but is unsure about it and I suspect may be relying on his knowledge of usual practice on wet days rather than his specific memory of the events of the morning in question. Mr Sturgiss was not called to give evidence and I draw the available inference that his evidence both specifically as to whether or not there was a second mat in place, and more generally as to the events of the morning, would not have assisted the second defendant on any issues in contention.
29. It is not necessary for me to make a specific factual finding as to whether the mat was there or not, because it does not make any real difference to the plaintiff’s case. Whether it was there or not, I am satisfied that the plaintiff came in the door, wiped her feet and paused for some seconds, concerned as to whether the tiled floor might be wet and slippery.
30. I prefer the plaintiff’s recollection to that of Mr Goddard as to his precise whereabouts. I am satisfied that she saw him but did not see the warning sign or his trolley. They may have been a little further away and out of her line of sight, or perhaps obscured by advertising signage. It is unnecessary for me to make a specific finding about this. I am satisfied that the plaintiff did not see them, and I am equally satisfied that this was not due to any failure on her part to keep a proper lookout.
31. I am satisfied that the portion of the ceramic tiled floor on to which the plaintiff then stepped was wet, or at least damp, and that because of the moisture it provided inadequate traction for the sole of her shoe, causing her to slip and lose her footing. I am also satisfied that the wet or damp condition of the floor surface was not obviously visible to her, and that the fall was not caused to any degree by any failure on her part to look where she was stepping.
32. The floor may have been wet simply because of water walked in by other customers, but I think it more likely that it was wet because Mr Goddard had mopped it with his wet mop and had not adequately dried it with his dry mop.
33. I accept Mr Goddard’s own evidence that he had his back to the area where the plaintiff fell. If he had been facing the entrance doors and keeping a lookout for customers entering the Mall, he would have seen her and could have warned her not to step on the wet portion of floor, or at least to take extra care.

Legal principles

34. Most of the case law about liability for falls in shopping malls arises out of spillage claims. The issue is generally whether the system of inspection was a reasonable one. This is a somewhat different case. The plaintiff did not fall because of an undetected spillage. To the extent that muddy footprints fall into the same category as a spillage, the fall arose from inadequate cleaning and drying of the area of the spillage.
35. I referred to a number of the spillage cases in Cairns v Woolworths Ltd [2005] ACTSC 95 at [122]- [126].
36. Although it is a spillage case and not directly on point, Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 is helpful for the emphasis by Kirby P on the high duty of care owed by a shopping mall occupier to an entrant. His Honour described the defendant in that case (the occupier of Minto Mall in Sydney) as a large commercial enterprise which invited members of the public to do business at its premises for the purpose of deriving an economic advantage. Those words apply with equal force to Westfield in the present case.
37. Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 was a more recent decision of the New South Wales Court of Appeal in a spillage case. Hodgson JA, with whom Nicholas J, and Gyles AJA generally, agreed, said relevantly for the present action:

Breach of duty?

52. There is no doubt that Bevillesta as owner and occupier of the shopping centre owed a duty of care to the plaintiff.
53. There is no doubt also that this occupier’s duty of care is “delegable”, in the sense that it may be discharged in whole or in part by the occupiers’ exercise of reasonable skill and care in engaging someone else to take steps to keep the property safe either generally or in particular respects. Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps. If it is reasonable for an occupier to seek to discharge or partly discharge the occupier’s duty in this way, and the occupier does exercise reasonable skill and care in all these respects, then if a person coming on to the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the occupier may escape liability.
54. In my opinion, a corollary of this is that a person engaged in this way may come under a duty of care to persons coming on to the property. If that person knows or reasonably should know that he or she has been engaged to keep the property safe for persons coming on to it (and the exercise of reasonable skill and care by the occupier would require that this be conveyed to this person), then in my opinion the person so engaged would appreciate that if he or she does not exercise reasonable skill and care, there is a risk of injury to persons coming on to the property; and the person’s understanding of that engagement and risk gives rise to a relationship with persons coming on to the property sufficient to support a duty of care.

. . .

56. This approach . . . has also been applied to cleaners engaged by occupiers to clean premises. Certainly a cleaner would be liable if it creates a hazard, for example by leaving a floor wet and unguarded: see Woolworths (WA) Pty Limited v Berkeley Challenge Pty Limited [2004] WASCA 196, (2004) 28 WAR 540 at [56]- [57].
57. Even when a hazard is created by someone else, and the cleaner fails to deal with it, it seems clear that the cleaner can be liable for breaching a duty of care to persons coming on to the property. This was assumed, without being discussed, in cases such as Allcorp Cleaning Services Pty Limited v Fairweather (NSW Court of Appeal, 29 June 1998, unreported) and P & H Property Service Pty Limited v Branigan [2008] NSWCA 195. See also Cairns v Woolworths Limited [2005] ACTSC 95 at [135].

38. Gyles AJA generally agreed with the reasons of Hodgson JA but added at [68]:
    68. . . . I would prefer to leave for another day consideration as to whether and, if so, in what circumstances, a cleaning contractor might be directly liable in tort to an entrant to premises for other than a negligent act causing a foreseeable risk of injury such as leaving a bucket in a dangerous position or leaving an access way in a slippery condition.

39. As I said, Nicholas J agreed with Hodgson JA and his Honour’s reasons must be taken to be the ratio decidendi of the case, to be followed by me in the absence of any competing authority of this Court or of another Australian intermediate appellate court. The reasoning in that decision would appear to ground liability in the cleaning contractor for the plaintiff’s fall in the present case even if she had slipped on a portion of the floor which was wet because of walked-in rainwater which Mr Goddard had failed to mop up.
40. In view of my finding that it is more likely that the plaintiff slipped on a wet area of the floor left in that condition because Mr Goddard had not adequately dried it with his dry mop, it is unnecessary to rely on the reasoning of Hodgson JA (to the extent that Gyles AJA did not support it) in Bevillesta. Mr Goddard left the floor wet, or at least sufficiently damp to amount to a slipping hazard for the plaintiff, and failed to take adequate steps to warn her of the slippery condition of the floor. In the circumstances I am satisfied that the cleaning contractor, the second defendant, committed a breach of its duty of care to the plaintiff, and that that breach caused her injury.

Liability of the occupier

41. The first defendant, Westfield, undoubtedly owed a duty of care to the plaintiff: see Bevillesta at [52].
42. It is apparent that Westfield did not engage its own employees to patrol the common areas of the Mall and to dry wet areas of the floor. Rather, Westfield engaged Reflections contractually to carry out that responsibility on its behalf. No party to the present proceedings suggests that Westfield exercised anything less than reasonable skill and care in selecting Reflections as its contract cleaner, or in arranging the terms of engagement, or in ensuring that Reflections was complying with its contractual obligations. Although I have no oral evidence from any Westfield manager or staff member, I have the benefit of the cleaning contract. It seems to me that the obligations imposed by the contract on Reflections are sufficiently detailed and thorough to enable me to conclude that Westfield successfully delegated to Reflections its duty of care to protect the plaintiff from injury by reason of a wet floor. Westfield accordingly escapes liability for breach of the duty which it unquestionably owed to the plaintiff.

Damages

43. Immediately following the fall the plaintiff felt shocked and rattled. She was aware of pain in the right hip and generally on the right side of her body. Her right arm and shoulder were also sore. She was limping because of pain in the right leg, mainly involving the hip and thigh. She developed additional pain in the right wrist on the night following the fall and slept poorly. She also developed low back pain, aggravated by bending, lifting and prolonged standing.
44. On the day of the accident she attended the Ginninderra Medical Centre where she saw a doctor on duty. The doctor advised her to take analgesics and to see her own doctor if her symptoms did not improve. On the following day she went to her regular doctor, Dr Dianne Hannaford, at Belconnen. She had obvious bruising to the lateral right thigh and other visible contusions. She had difficult in abducting or elevating her right arm because of pain in the shoulder region.
45. The intrusive elements of her pain gradually resolved over a period of weeks, as is usual with bruises. Her right shoulder was the principal source of continuing concern. It was painful on movement, including dressing and performing any overhead activities.
46. Dr Hannaford sent her to a physiotherapist who first saw her on 18 July 2007, and reviewed her at three further appointments during that year. Physiotherapy treatment included application of heat, massage, ultrasound and exercises. These were of short-term help but her symptoms continued.
47. In February 2008, Dr Hannaford referred her for a magnetic resonance arthrogram of the right shoulder. This revealed advanced degenerative change in the right acromioclavicular joint, and chondral degenerative change in the lateral acromion. It also showed a one centimetre-wide (full thickness) tear of the anterior leading edge of the supraspinatus. There was also significant tendonosis involving the remainder of the supraspinatus.
48. As a result of the arthrogram report, Dr Hannaford sent the plaintiff to see Dr Robert Creer. Dr Creer saw her on one occasion, in May 2008. He discussed with her the possibility of surgery in the form of an arthroscopic acromioplasty and rotator cuff repair. A second option would be the acromioplasty only, which was less likely to provide pain relief, return of function and strength. The alternative to surgery was continuing with conservative treatment. Dr Creer told the plaintiff that she would be off work for a minimum of eighteen weeks following surgery, and for ten weeks would be unable to drive a car. A further consideration was that in patients of her age, the tendon integrity of the cuff tissues was not always of sufficient strength to hold the sutures, leading to a recurrent tear which rendered the problem irremediable. The plaintiff, after considering the options, decided not to proceed with surgery. Her decision was in my opinion a reasonable one.
49. The plaintiff was widowed a few months before the accident and has lived alone since, with some assistance from her son and daughter-in-law with heavier chores.
50. She returned to work four days after the accident, although still in pain. She was working as a nurse on nightshift in the children’s ward at the Canberra Hospital, from 9.00 pm to 7.30 am four days a week. She wore a uniform and spent most of her time on her feet. She looked after two sections of the ward, one for children under twelve and one for adolescents up to seventeen. Her responsibilities included two high-intensity children with devastating illnesses, who had been in the hospital for seven years or more and were almost totally dependent on nursing staff.
51. She found that her injuries, particularly that to the right shoulder, affected her capacity to carry out her work. This included lifting babies for feeding. Most tasks involved the use of both hands and arms.
52. The plaintiff at one point was prescribed Tramal, a strong painkiller, but found that this did not agree with her and ceased taking it. By the hearing she was taking Mobic each night, and sometimes Valium, to help her sleep. About once every two or three weeks she awoke during the night with her arm in spasm.
53. Her right hip continued to be sore, particularly after busy nights at the hospital. She found that many household tasks took her twice as long as previously, including vacuuming, washing clothes and shopping. Dressing remained difficult, for example putting on her bra and doing it up. She continues to be unable to get her right hand behind her back.
54. About four months before the hearing, she cut back from working four nights a week to seven nights a fortnight, and said in her evidence that she was contemplating dropping back to three nights a week, perhaps as soon as winter 2010. However, she had no plans for retirement. She is now sixty-two years of age. There is no mandatory retiring age in her work, and one of her colleagues is still working at the age of seventy-six.
55. She was examined on two occasions, in April 2008 and April 2009, by Dr Graeme Griffith, a consultant surgeon, for the purpose of reports to her solicitors for these proceedings.
56. In the course of her treatment, the plaintiff has had electrotherapy, which caused marked mental disturbance and dizziness.
57. The plaintiff is no longer able to work in her garden at home, something she previously enjoyed.
58. In the opinion of Dr Griffith, the plaintiff continues to suffer from post-traumatic right trochanteric bursitis, aggravation of acromioclavicular arthritis of the right shoulder, a torn supraspinatus, and marked restriction of movement of the right shoulder. There were already arthritic changes in the right acromioclavicular joint before the injury but they were asymptomatic. Dr Griffith thought that the plaintiff’s reasons for delaying surgery were reasonable but that it remained a fall-back position. She might in his view benefit from repeated injections of sub-acromial steroid. She would reasonably continue to control her pain with analgesic and anti-inflammatories which would permit her to continue in employment.
59. The plaintiff was cross-examined by counsel for both defendants about the circumstances of her fall but her evidence about her injuries and disabilities was not challenged in any way. Counsel for the defendants did not seek to take advantage of the opportunity to cross-examine any of the medical witnesses who reported in the plaintiff’s case, and called no medical evidence themselves.
60. The plaintiff came across to me as an honest and genuine woman who is continuing with her life, stoically and uncomplainingly in the face of considerable pain, restriction of movement and interference with her enjoyment of life. Fortunately she loves and gets an enormous amount of satisfaction from her work.
61. Counsel agreed in addresses that there was no real issue about quantum. Not unexpectedly, when invited to put ranges on general damages for pain and suffering and loss of enjoyment of life, counsel for each of the parties came up with different figures. Although the ranges were not far apart, there was no overlap. Counsel for the plaintiff submitted that an appropriate range would be $70,000.00 to $80,000.00. Counsel for the first defendant suggested $50,000.00 to $60,000.00, and counsel for the second defendant put a range of $40,000.00 to $45,000.00. I remind myself, for perspective, that the present maximum award for non-economic loss under the Civil Liability Act 2002 (NSW), ss 16 and 17, is $473,500.00 (see NSW Gazette no. 136 of 25.9.2009, page 5232). The concept of a maximum amount, set by legislation, followed national concern that awards of general damages for pain and suffering and loss of enjoyment of life were becoming unaffordable for the insurance industry and the community. The maximum amount fixed by legislation is generally seen as somewhat less than the maximum amount which might be awarded in a most extreme case under the general law.
62. For a woman of the plaintiff’s age and position in life, the injuries and disabilities from which she has suffered and continues to suffer are very significant. When invited by the Court to put forward a range for general damages, counsel are expected to put forward a professional opinion, having regard to the evidence and to their submissions as to what evidence the Court should accept. This will often account for a wide disparity between figures put forward by counsel for different parties. It should be understood, however, that the ranges put forward are not to depend on instructions from the client, but should be based upon the independent assessment of counsel. The process reflects the special relationship between counsel and the Court, and the overriding duty of counsel to the Court. The Court, of course, understands that this can sometimes place counsel in an invidious position. It should be clearly stated that there is no obligation on counsel to put a range. There will be occasions where the conflict between counsel’s duty to the Court and the expectations of the client is so stark that it would be unreasonable for the Court to expect counsel to commit to a range.
63. In the present case, it appears to me on the evidence that the ranges put forward by counsel for each of the defendants are too low, and that even the range put forward by counsel for the plaintiff is perhaps a little modest. I propose to award $80,000.00 for general damages.
64. There was general consensus between counsel that this should be apportioned equally between the past and the future. The past component attracts interest for which I award $4,500.00.
65. Treatment expenses to date are agreed at $3,757.22.
66. It is agreed that the plaintiff has lost $1,400.00 in earnings to date by reason of her reduction of working hours since October last year.
67. Although it is unlikely that the plaintiff will ever undergo surgery for her shoulder, she will continue to require painkillers and anti-inflammatories. There remains the possibility, although unlikely, that she will require further treatment. For future treatment expenses I allow $5,000.00.
68. It is not submitted on the plaintiff’s behalf that her injuries are likely to lead to early retirement, but the plaintiff does say that she may decide to reduce her hours further. I think it possible though unlikely that if it had not been for the injury she would have worked on to age seventy-five. It is quite likely that she would have worked on to age seventy and highly probable that she will work on beyond age sixty-five. Her reduction in working hours is presently causing her a net loss of $4,200.00 a year. If she needs to cut back by another day a fortnight her loss will be double that figure.
69. Assessing damages for her loss of earning capacity for the future involves a degree of speculation. Doing the best I can, I propose to allow $20,000.00.

General damages:	$80,000.00
Interest on past component	$4,500.00
Treatment expenses:
Past	$3,757.22
Future	$5,000.00
Loss of earning capacity:
Past	$1,400.00
Future	$20,000.00
	$114,657.22

70. The individual components of the award of damages are:

71. Upon consideration, that total seems to me to reflect a reasonable figure to compensate the plaintiff for the injury she has suffered.

Conclusion

72. There will be judgment for the plaintiff for $114,657.22 against the second defendant. There will be judgment in favour of the first defendant.
73. My provisional view is that the plaintiff acted reasonably in bringing proceedings against both defendants. The first defendant, having been successful, should have an order for costs, but at the expense of the second defendant rather than the plaintiff: that is to say, there should be a Bullock order: Bullock v London General Omnibus Co Ltd [1907] 1 KB 264. I shall provide the parties with an opportunity to be heard in case there are other factors of which I am unaware which might affect the exercise of my discretion as to costs.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 19 February 2010

Counsel for the plaintiff: Mr FMG Parker

Solicitors for the plaintiff: Slater & Gordon

Counsel for the first defendant: Mr SH Pilkinton

Solicitors for the first defendant: Dibbs Barker

Counsel for the second defendant: Mr AJ Hourigan

Solicitors for the second defendant: Ms A Brooks

Date of hearing: 9 February 2010

Date of judgment: 19 February 2010