Timberland Property Holdings Pty Ltd v Julie Bundy [2005] NSWCA 419 (30 November 2005)

CITATION: Timberland Property Holdings Pty Ltd v Julie Bundy [2005] NSWCA 419

FILE NUMBER(S):

40402/04

40608/05

HEARING DATE(S): 9 November 2005

JUDGMENT DATE: 30/11/2005

PARTIES:

Timberland Property Holdings Pty Ltd (Appellant matter 40402/04)

Julie Bundy (Respondent matter 40402/04)

John Pincham Real Estate Pty Ltd T/as The Professionals Campbelltown (Appellant matter 40608/05)

Julie Bundy (Respondent matter 40608/05)

JUDGMENT OF: Handley JA Basten JA Hunt AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 927/01

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:

K. J. Kelleher (Appellant matter 40402/04)

M. Gilbert (Appellant matter 40608/05)

G.B. Hall QC/R. Freeman (Respondent both matters)

SOLICITORS:

A.R. Connolly & Co (Appellant matter 40402/04)

Moray & Agnew (Appellant matter 40608/05)

Gerard Malouf & Partners (Respondent both matters)

CATCHWORDS:

NEGLIGENCE – plaintiff slipped on patch of grease or oil in car park – whether finding that patch was ‘obvious’ was inconsistent with a finding of breach of duty of care – whether sufficient evidence to substantiate causation – form of orders where plaintiff recovered against several concurrent tortfeasors – whether plaintiff entitled to several judgments against each for the full amount

LEGISLATION CITED:

Civil Liability Act 2002 (NSW)

Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

Suitors' Fund Act

Workers Compensation Act 1987 (NSW)

DECISION:

A. In matter CA 40402 of 2004 (Timberland Property Holdings Pty Ltd v Bundy)

(1) Appeal dismissed

(2) Judgment of District Court varied so as to provide a verdict and judgment for the Plaintiff against the Second Defendant, (Timberland Property Holdings Pty Ltd) for the amount of $77,762.25

(3) Second Defendant to have leave to seek contribution from the First Defendant in accordance with the apportionment of 30% liability of the First Defendant made by the trial judge on 11 March 2004

(4) The Appellant to pay the costs of the appeal and cross-appeal in respect of this matter, other than the costs dealt with on 27 June 2005

B. In matter CA 40608 of 2005 (John Pincham Real Estate Pty Ltd v Bundy)

(1) Appeal dismissed

(2) Judgment of District Court varied so as to provide a verdict and judgment for the Plaintiff against the First Defendant (John Pincham Real Estate Pty Ltd) for the amount of $79,158.75, less payments made under the Workers Compensation Act

(3) The First Defendant to have leave to seek contribution from the Second Defendant in accordance with the apportionment of 70% liability of the second defendant made by the trial judge on 11 March 2004

(4) The Appellant to pay the costs of the appeal and cross-appeal in respect of this matter, other than the costs dealt with on 27 June 2005

C. Each appellant should have a certificate under the Suitors’ Fund Act in respect of the costs of the cross-appeals if otherwise so entitled.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40402/04

CA 40608/05

DC 927/01

HANDLEY JA

BASTEN JA

HUNT AJA

30 November 2005

TIMBERLAND PROPERTY HOLDINGS PTY LTD v JULIE BUNDY

JOHN PINCHAM REAL ESTATE PTY LTD T/AS THE PROFESSIONALS CAMPBELLTOWN v JULIE BUNDY

This is an appeal from a judgement of the District Court awarding damages to the plaintiff, Ms Bundy, for injuries she sustained when she slipped on a patch of grease or oil, as she was walking through a car park on her way back to her office.

The District Court held that both her employer and the owner of the premises in which the car park was located were negligent and apportioned damages on the basis of 30% to the employer and 70% to the owner. However, in reaching this conclusion, the judge found that the spill was ‘obvious’.

The issues for determination on appeal included, inter alia, whether:

(i) the finding that the patch was ‘obvious’ was inconsistent with the finding that there was a breach of the duty of care;

(ii) there was sufficient evidence to substantiate a finding of causation, and

(iii) the orders made as against each defendant, for its proportion of the damages awarded, were appropriate.

Held in relation to the duty of care

Per Basten JA (Handley JA and Hunt AJA agreeing):

1. There were circumstances which justified the finding that the appellants owed a duty of care to persons walking in the car park in relation to oil spills: at [28].

Richmond Valley Council v Standing (2002) Aust Torts Rep 81 679; Brodie Shire Council [2001] HCA 29; (2001) 206 CLR 512 and Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19 referred to.

2. The finding by the trial judge that the patch of grease or oil was obvious meant simply that the patch would indeed be apparent to persons looking down as they walked around the pylon, but did not mean that persons taking reasonable care for their safety, whilst walking across the car park, need necessarily look at the ground: at [29].

3. The finding of a duty of care, properly understood in accordance with Brodie and Standing, was not contradicted by the factual finding that the patch was ‘obvious’: at [29].

Held in relation to causation

Per Basten JA (Handley JA and Hunt AJA agreeing):

1. To establish causation where the evidence is slight, it is necessary to make two factual findings. First, there must be a finding as to what level of inspection would be sufficient to satisfy the defendant’s obligation to take reasonable care; secondly, there must be evidence to demonstrate that the establishment of such a system would have avoided the plaintiff’s injury: at [37].

Rose v Abbey Orchard Property Investments Pty Ltd (1987) Aust Torts Rep ¶80-121; Shoeys Pty Ltd v Allan (1991) Aust Torts Rep ¶81-104 and Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 referred to.

2. The paucity of evidence meant it was not possible to purport to establish any factual standard by which the inspection of car parks might be judged generally. As a practical matter, it would be reasonable and appropriate to expect a car park to which members of the public had access to be inspected at least once per working day, outside business hours: at [40].

3. The fact that the oil spill remained for several weeks (if not months) after the accident gave some support for the inference that it was unlikely to have occurred on the very day on which the plaintiff fell: at [42].

4. There was sufficient evidence to support the finding of causation made by the trial judge: at [43].

Held in relation to the form of orders

Per Basten JA (Handley JA and Hunt AJA agreeing):

1. At common law a plaintiff who recovered against several concurrent tortfeasors was entitled to several judgments against each for the full amount. This principle was not affected by s2 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW): at [55].

Speirs v Caledonian Collieries Ltd (1957) 57 SR (NSW) 483 referred to.

2. Neither s151Z nor s151S of the Workers Compensation Act (1987) NSW affected the principle that a plaintiff was entitled to a judgement against each tortfeasor, even though in different amounts reflecting the differing bases of calculation of liability: at [56] – [58].

Oxley County Council v MacDonald [1999] NSWCA 126 applied.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40402/04

CA 40608/05

DC 927/01

HANDLEY JA

BASTEN JA

HUNT AJA

30 November 2005

TIMBERLAND PROPERTY HOLDINGS PTY LTD v JULIE BUNDY

JOHN PINCHAM REAL ESTATE PTY LTD T/AS THE PROFESSIONALS CAMPBELLTOWN v JULIE BUNDY

Judgment

1 HANDLEY JA: I agree with Basten JA.

2 BASTEN JA: On 13 July 1999, the Respondent in each of the appeals, Ms Julie Bundy (“the Plaintiff”), slipped and fell in a car park at Campbelltown in south-western Sydney. The car park formed part of a building owned by the Appellant Timberland Property Holdings Pty Ltd (“Timberland”), in which the Respondent’s employer, John Pincham Real Estate Pty Ltd (“the employer”) leased premises.

3 The Plaintiff commenced proceedings in the District Court on 13 August 2001, seeking damages in relation to injuries suffered by her as a result of the accident, she having slipped on a patch of grease or oil on a concrete driveway in the car park and fallen heavily. On 25 February 2004 the trial judge delivered his judgment, finding in her favour on the basis of negligence, as against both Timberland and her employer. He reduced her damages, however, by 25% on account of her contributory negligence. Timberland sought leave to appeal against the judgment which had been entered against it in the amount of $54,433.75 plus 70% of the costs of the proceedings in the District Court. The plaintiff sought to cross-appeal against the finding of contributory negligence or, in the alternative, the extent thereof.

4 Two issues were sought to be raised by Timberland. First, it submitted that, the trial judge having found that the oil spill was “obvious”, his Honour erred in finding there was either a duty of care owed by it to the Plaintiff in respect of the spill or, in the alternative, in holding that there was a breach of such a duty. Secondly, since any duty which may have existed was to take reasonable precautions to clean up such spills, and the evidence showed that the spill was “fresh”, his Honour erred in finding a causal connection between the breach of duty and the injury.

5 The primary issue raised on the cross-appeal was that his Honour should have accepted that the evidence demonstrated no lack of reasonable care on the part of the Plaintiff for her own safety, but at best inadvertence, which did not justify a finding of contributory negligence.

6 These proceedings had a chequered history in the District Court, being a state of affairs which continued in this Court. There being some doubt as to whether the case justified a grant of leave to appeal, the application by Timberland was listed for separate consideration in this Court. The Court was persuaded that an issue of principle arose in relation to the extent of the duty of care with regard to “oil spills” in the “many car parks in the State”. In seeking leave to appeal, Timberland was clearly not in a position to resist the application for leave to cross-appeal, which leave was granted as a consequence of the grant of leave to appeal. The result was that little attention was given on the leave application to the consequence of a successful cross-appeal, namely an increase in the liability of both Timberland and the employer. That point was perceived by the Plaintiff only days before the appeal was listed for hearing in this Court, on 27 June 2005. The belated joinder of the employer led to the first hearing date being vacated. However, two other steps were taken on that day. First, the employer, having been brought into the proceedings, sought leave to commence its own appeal, in support of Timberland. This leave was granted so that, when the proceedings came back before this Court on 9 November 2005, there were separate appeals filed by each of the defendants in the Court below and each defendant was a cross-respondent to the cross-appeal filed by the Plaintiff.

7 The second matter dealt with on 27 June 2005 was an application by the Plaintiff to adduce further evidence, by way of an expert report, seeking to fill a gap in the evidence at trial, with respect to the age and nature of the grease or oil on which she had slipped. There being no explanation of why such evidence had not been obtained for use at the trial, that application was refused. The Plaintiff was required to pay the costs of the unsuccessful motion and the costs thrown away by the adjournment of the proceedings on that date.

8 The grounds of the appeal filed by the employer, and the orders sought by it, were in identical terms to those sought by Timberland. Counsel for the employer was largely content, both in written submissions and at the hearing, to adopt the submissions made on behalf of Timberland.

Preliminary matters

9 Before turning to the issues raised by the appeal and cross-appeal, it is convenient to note a number of aspects of the proceedings which were not challenged on the appeal. First, the evidence suggested that the property was owned by Timberland and South Ocean Investments Pty Ltd as tenants-in-common in equal shares. South Ocean Investments was not a party to the proceedings and no issue was taken as to its absence.

10 Secondly, although the Civil Liability Act 2002 (NSW) may apply to an award of personal injury damages in relation to an injury received before the commencement of the Act (on 20 March 2002 – see s 2 and Schedule 1, cl 2(1)), it does not apply in relation to proceedings commenced before the commencement of the Act, as these proceedings were: see Schedule 1, cl 2(2). Accordingly, provisions of that Act which may now be relevant to obvious risks had no application in this case.

11 Thirdly, although there was some lack of clarity in the evidence as to the responsibilities of the employer and Timberland in relation to maintaining and cleaning the car park, no issue was raised in that respect in the appeal.

12 Fourthly, because the Plaintiff brought proceedings against her employer and a “stranger” within the meaning of s 151Z of the Workers Compensation Act 1987 (NSW), the form of the order appears to have differed from that which would have been appropriate under the general law. The appeal involved no issue in relation to the quantum of damages, or the apportionment of liability between Timberland and the employer. However, the judgment entered in the District Court was irregular and should be amended.

Obviousness of spill

13 At the time of the accident, the Plaintiff was working as a real estate agent with John Pincham Real Estate, the employer. She had taken two prospective buyers to view certain properties and had returned to her office with one of the customers, Ms Belinda Danielli. She parked her car on level 3 of the building, where she had been instructed by her employer to park, although it appears to have been a level available to the public generally and not merely to tenants. Having parked, she helped Ms Danielli, who was accompanied by a baby, from the car. Ms Danielli apparently set off in the wrong direction for the lifts, with the Plaintiff following. She and Ms Danielli walked along a driveway away from her car and made a right hand turn around a pillar alongside Bay 31. Ms Danielli was on the outside (or left hand side) of the Plaintiff and a little in front of her as they turned to the right. Almost immediately on rounding the concrete pylon, the Plaintiff placed her foot on a patch of grease or oil in front of the car in Bay 31, slipped and fell. The Plaintiff gave evidence that the area of oil was about a metre square and that, although she had oil on her hand as a result of the fall, she couldn’t see exactly what she had slipped on until she took a torch from her handbag. She described the area as “very dark” and said there were no lights on.

14 Ms Danielli also gave evidence concerning the fall. The Plaintiff being a step or two behind her, she had turned to assist the Plaintiff and look at what she had slipped in. She described it in the following terms (Tcpt 61(45)):

“It was a grease patch in the car park where her – you could see where her heel had gone through, through the grease, ... .”

Ms Danielli said nothing about the Plaintiff taking out a torch, but described the time as “about 4 in the afternoon” on a stormy day, which was “quite cloudy”: Tcpt 64(50). Ms Danielli was also asked to describe the lighting where the Plaintiff parked her vehicle and said that it was “very dim, very dark”.

15 The Plaintiff returned to the scene of her accident at about 5pm and took some photographs with a flash, showing the grease or oil on the concrete car park floor and showing the skid mark made by her heel when she slipped and fell. Those photographs would appear to provide a reasonable representation of the oil patch at the time of the fall, in that, although there are several tyre marks in the grease or oil, they do not cross the skid mark left by the Plaintiff’s heel. As will be noted below, this feature of the photographs has some relevance to the question of causation, because it suggests that more than one vehicle may have used Bay 31 after the spill occurred and prior to the fall.

16 How conspicuous the oil or grease patch may have been to the Plaintiff would have depended upon a number of factors including:

(a) how many steps the Plaintiff would have taken after rounding the concrete pylon, within sight of the patch;

(b) the general level of lighting in the area;

(c) whether she was looking into the light or had it behind her;

(d) the degree of contrast between the oil patch and the surrounding concrete, and

(e) the existence of other distracting factors.

17 In relation to the last matter, there was no suggestion that the Plaintiff’s attention was directed elsewhere by any particular distraction, such as a passing car. She was apparently seeking to catch up with her customer and giving her directions as to how to reach the lifts. However, once they had rounded the corner, the lift would appear to have been readily visible at a little distance straight in front of them.

18 So far as the first matter was concerned, the evidence failed to reveal at what point the patch might have become visible to the Plaintiff, had she been looking down. However, from the sketch plan provided by her in evidence and from a combination of the photographs, she may well have taken some three-five steps, after it was potentially within view before stepping on the patch of oil or grease.

19 So far as the question of contrast is concerned, there is no doubt that the oil or grease was darker than the surrounding concrete. Further, the concrete carriageway appears to have been darker in areas subject to greater use and quite light between the oil or grease patch and the pylon, where there would have been little traffic.

20 So far as the adequacy of the lighting generally was concerned, different impressions were given by Ms Danielli and the Plaintiff. Thus, the former described the lighting as both “dim” and “very dark”, but that was in relation to the area where the car was parked, not where the Plaintiff fell. As to the lighting at the point of fall, the Plaintiff suggested that she could not see clearly where she had fallen without the use of a torch, whilst Ms Danielli appears to have had no difficulty in seeing where the fall had taken place, including the skid marks in the grease, without the aid of any torch.

21 As to the direction of the lighting, the sketch indicated that one side of the car park was open, and one of the photos suggested that the side beyond the lift, being a second side, was also open. However, the degree of daylight which reached the area beside Bay 31 may have been limited, as it would appear to have been distant from both openings, the time of day was 4pm in winter and the weather was stormy and overcast. Further, there appears to have been water on the ground which may have darkened parts of the concrete floor, possibly giving a shiny appearance and diminishing the contrast created by the oil patch.

22 His Honour dealt with the question of obviousness at [24]. Having decided that there was a foreseeable risk of slipping on grease or oil, and that the risk of injury if one slipped or fell was great, his Honour turned to the question of the likelihood of such an occurrence, dealing with it in the following terms.

“It was certainly likely that someone could slip or fall ... . Other than the evidence of the plaintiff and Mrs Danielli who said that the lighting was poor or dim, there was no evidence of the number of lights or the nature of them in the car park. I conclude that the likelihood of an injury from a spillage of this type was not high. A spill of grease or oil would be obvious to anybody coming across it. It was not small, it was not like a piece of banana skin or peel, it was able to be observed for those keeping a proper lookout notwithstanding the alleged condition of the lighting.”

23 The appellant sought to derive support from the judgment of this Court in Richmond Valley Council v Standing [2002] NSWCA 359; (2002) Aust Torts Rep ¶81-679, being a case involving a fall by a 62-year-old woman who trod in a hole or gap between portions of concrete pavers forming a footpath. In assessing the extent of the duty of care on the part of the Council responsible for the maintenance of the footpath, Heydon JA (with whom Handley and Sheller JJA agreed) referred to the principles derived from Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, especially at [163] in the joint judgment of Gaudron, McHugh and Gummow JJ. In that passage their Honours stated in relation to pedestrians:

“The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road’s surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger ..., or the surrounding area ... . In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a ‘trap’ or, as Jordan CJ put it, ‘of a kind calling for some protection or warning’. In Romeo, Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger.”

24 The distinction to be drawn in formulating the duty of care is encapsulated by Heydon JA at [54] in Standing:

“Almost any injury that happens is an injury in respect of which there can be said to have been a foreseeable risk. In that sense, there was a foreseeable risk of injury here. But it was not a reasonably foreseeable risk of injury to pedestrians using reasonable care for their own safety.”

His Honour then continued in relation to the circumstances of the particular case, noting that the plaintiff was in an excellent position to see and avoid imperfections in the surface, that she was aware of unevenness in the paving slabs and cracks between slabs, and that there was no concealed feature or inadequacy of lighting or any other feature calling for special vigilance.

25 Just as it may be possible to describe most injuries which occur as being foreseeable, it may also be easy to describe the hazard which caused them in a general sense as “obvious”. However, obviousness depends to a significant extent on the circumstances and position of the perceiver. That which is obvious from one position or at one time of day or in some circumstances, may not be obvious where those factors change. To determine what is obvious in a particular case, it may be useful to take the specific circumstances of the Plaintiff into account and then to inquire whether there was some aspect of her circumstances which was not reasonably foreseeable by the occupier. So long as there was no such unforeseeable circumstance, the question of obviousness must be answered by reference to her particular circumstances.

26 Reading the term “obvious” in the context in which it is used in Brodie, it is but a compendious way of concluding that no duty of the kind identified in that passage, and bearing in mind the distinction encapsulated in the passage from Heydon JA in Standing, arises. However, terms such as “obvious” or “conspicuous” are everyday words which may not always be used, even in a judgment, to describe the end point of an analysis such as that outlined above. Furthermore, it is clear that the joint judgment in Brodie was not seeking to draw some bright line between persons using reasonable care for their own safety (to whom a duty might be owed) and those who fail to exercise such care, as demonstrated by a significant level of contributory negligence. As the High Court noted in Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19 at [37]:

“The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.”

27 As will be noted below, inadvertence may need to be distinguished from carelessness which would reduce a defendant’s liability, so that acceptance not only of inadvertence, but also of a degree of carelessness is not inconsistent with the existence of a duty of care. That result is possible because the formulation of a duty and the existence of contributory negligence operate at different levels. A duty depends upon a risk foreseeable on a particular assumption, namely that a person will take reasonable care for his or her own safety. The duty may thus be found to exist, regardless of whether the particular plaintiff has in fact taken such care.

28 In the present case, there were circumstances which justified the finding by the trial judge that the Appellants owed a duty of care to persons walking in the car park, in relation to oil spills. These factors included the relative inadequacy of the lighting, the unchallenged expectation that people might walk down the laneways used by traffic, which would require that they keep a lookout for approaching vehicles, and the nature of the patch of grease or oil in the present case, which was not (as might be expected) under the engine of a car parked in an appropriate manner, nor of the relatively small size that might be expected to result from engine drips.

29 Taking these and the other surrounding circumstances described above into account, there is no reason to suppose that in finding both that the patch of grease or oil was “obvious” and that the Appellants owed a duty of care, the trial judge was acting inconsistently with legal principle. Rather, I take his Honour to have been saying that the patch would indeed be apparent to a person looking down as they walked around the pylon, but not that a person taking reasonable care for their safety, whilst walking across the car park, need necessarily look at the ground in those circumstances. Accordingly, there was, in my view, evidence to support the finding of a duty of care, properly understood in accordance with Brodie and Standing, and such a conclusion is not contradicted by the factual finding that the oil or grease patch was “obvious”.

Causation

30 The complaint that any breach of duty did not materially contribute, in the relevant sense, to the injury, depended on the nature of the obligation imposed on the Appellants to take reasonable care and the length of time for which the oil or grease had been present on the car park floor. Thus, if the Appellants’ obligation was satisfied by a daily inspection of the car park, the Plaintiff had failed to prove that the oil in which she slipped had been deposited on that day. As noted above, the photographs showed that there were tyre marks in the grease or oil prior to the Plaintiff’s fall, nevertheless, there was no evidence as to how many vehicles may have driven through the substance, there was conflicting testimony as to whether it was grease or oil (the viscosity presumably indicating a lengthier period if it were oil slowly seeping into the concrete) and no evidence at all as to the system of cleaning, or what a reasonable system of cleaning might involve. More importantly, the Appellants complain that the finding actually made by the trial judge was inadequate to support the conclusion of causation upon which he relied. Thus, his finding was limited to the following conclusion at [21]:

“I do not consider that I can draw any accurate inference from this evidence as to when the spillage occurred, other than more likely than not it had been recent. In that regard I consider that it had been present for less than a week.”

31 The paucity of the evidence may be conceded. It no doubt induced the Plaintiff to make a belated and unsuccessful attempt to introduce expert evidence on the appeal. Nevertheless, there was some material which supported the trial judge’s conclusion and which might, in the circumstances, be treated as adequate.

32 The Appellants drew attention to the kind of evidence which might be expected in such a case, by reference to the judgment in Rose v Abbey Orchard Property Investments Pty Ltd (1987) Aust Torts Rep ¶80-121. In that case, the plaintiff had slipped on an oily patch in the defendant’s car park at approximately 3pm. The evidence given by the defendant demonstrated that there was a regular inspection system operating between 6.30am and 3pm by which a supervisor would make rounds of the parking station on a scooter, every 20 minutes and arrange for any oil or other spillage to be cleaned or covered with sand. However, the final inspection would be at about 2.30pm and there was an absence of evidence as to what occurred after 3pm. The Court held that an interval of at least 45 minutes between inspections after 3pm was unreasonably long in relation to a busy car park. There was expert evidence in that case in support of the view that a proper system of management would have maintained the inspection system throughout the working day.

33 As noted above, the present accident occurred in July. The Plaintiff gave evidence that the spill had still not been cleaned up when she left her employer in September and she further claimed that she had seen the oil or grease still on the car park floor on an occasion in November. His Honour appears to have accepted the Plaintiff’s evidence, at least in relation to the period from July to September: at [37]. One may infer that there was either no system at all of inspection and cleaning of oil spills in the car park or that such system as existed was inadequate. As his Honour noted, the Appellants called no evidence “of any cleaning system”: at [31].

34 The circumstances of the case were, as the trial judge also remarked, similar to those discussed in Shoeys Pty Ltd v Allan (1991) Aust Torts Rep ¶81-104. That is true in the sense that, as in Shoeys, it may be possible to infer that the defendant has no system, or an insufficient system of inspection and cleaning, and yet face a difficulty in demonstrating that such a lack of reasonable care gave rise to the injury. As Handley JA (with whom Priestley JA agreed) said in Shoeys Pty Ltd, the point was articulated by McHugh JA in Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 256B-C:

“The critical question, however, is whether the evidence raises an inference that the plaintiff’s injuries were the result of the defective system. This in turn reduces itself to the question as to whether the evidence gives rise to an inference that the appropriate inspection and cleaning system would have avoided the plaintiff’s injury. For it is no comfort to the plaintiff to show that the defendant did not have a proper system unless she can show that the existence of a proper system would have avoided her injury. That is to say, the critical issue is causation.”

35 In Shoeys Pty Ltd, Priestley JA noted the considerable difficulty which faces a plaintiff in establishing causality in slipping cases: ibid at p.68,941. His Honour suggested the desirability of legislation to reverse the onus of proof in a defined class of case. Such a reversal was adopted by the English Court of Appeal in Turner v Arding & Hobbs Ltd [1949] 2 All ER 911 at 912 (Lord Goddard CJ). However, as noted by McHugh JA in Brady, that approach has not been accepted in this Court ((1986) 7 NSWLR at 254D) and no legislative reform has achieved that result.

36 In Shoeys Pty Ltd, Handley JA applied the principle suggested by Dixon CJ in Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at 371, a case involving a plaintiff who slipped on a wet substance of a greasy nature in a lavatory. Dixon CJ said:

“... I do not think that proof of this fact was enough to enable the jury to infer negligence on the part of the defendant: proof was necessary of some additional circumstances tending, for example, to raise a probability of its having been there long enough to be seen if reasonable supervision were practised, or to show that so many people were likely to use the lavatory in the preceding hour that closer control was called for, or that the dropping of some such substance was common or inherently likely to occur. But very little might have been enough. For the case is one where the facts can hardly be within the knowledge of the plaintiff and, at all events so far as concerns the care and control of the premises and the precautions taken, must be peculiarly within the knowledge of the defendant ... . But a plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it, in accordance with the often repeated observation of Lord Mansfield in Blatch v Archer ... .”

His Honour’s comments were obiter in the circumstances, and not reflected in the joint judgment of other members of the Court. Further, the examples of what might be sufficient to satisfy the causal connection were doubted, at least as matters of “universal application” by McHugh JA in Brady at 252G-253A. Nevertheless, the principle that, in such circumstances, “slight evidence” may be sufficient appears to have been substantially applied by McHugh JA in Brady (at 256), as it was by Handley JA in Shoeys Pty Ltd. That approach was also applied in Hunt v Knight Frank (NSW) Pty Ltd [2005] NSWCA 139 at [43] (McColl JA, Mason P and Giles JA agreeing). In my view that principle may appropriately have application in the present case.

37 To establish causation in such circumstances, it is necessary to make two factual findings. First, there must be a finding as to what level of inspection would be sufficient to satisfy the defendants’ obligation to take reasonable care; secondly, there must be evidence to support the probability that the establishment of such a system would have avoided the Plaintiff’s injury. No express finding was made in the present case in respect of either element.

38 A court must be mindful of the fact that a reasonable system of inspection must not be unduly demanding in practical terms, nor unreasonably onerous in financial terms, given the nature of the dangers to be averted and the risks which may follow if such steps are not taken.

39 In the present case, there is an absence of evidence going to any of these matters. However, there are significant numbers of such cases in the courts, not a small number of which are taken on appeal. And despite the absence of evidence, it was Timberland which sought leave in this case in order to establish what it identified as a matter of some general importance.

40 The paucity of evidence means it is neither possible nor desirable in the present case to purport to establish any factual standard by which inspection of car parks might be judged generally. As a practical matter, it would be reasonable and appropriate to expect a car park to which members of the general public had access to be inspected at least once per working day, outside business hours when the number of vehicles present was minimised. Whether some higher standard could reasonably be expected cannot be determined in this case. However, it seems likely that his Honour implicitly accepted a standard of this order. Even if he did not, in my view that standard should be adopted in the present case.

41 The reason for thinking that his Honour did adopt such a standard arises from the finding, which he treated as sufficient in the circumstances, that the spill was recent, but only in the sense that it was less than a week old. That finding is not, in my view, consistent with the conclusion that the spill occurred within hours of the accident. It measures the time for which the oil or grease had lain on the car park by reference at least to days and is consistent with the conclusion that it had been there for at least one day. Although the evidence is properly described as “slight” the photographs provide a sufficient basis for concluding that there had been significant traffic movements through the oil spill, since it had occurred. Further, the Appellants invited the Court to infer that, because the relevant level of the car park was partly used by tenants, including the employer, the level of traffic movement during a day might be less than would be expected of a car park used only by customers visiting tenants of the building. Whether this inference is reasonably available, and whether it takes the matter much further, may both be doubted. Nevertheless, the contrary inference, that there is some high level of activity in the car park during a single day should not be drawn either.

42 Further, the fact that the oil spill remained for several weeks (if not months) after the accident gives some support for the inference that it was unlikely to have occurred on the very day on which the Plaintiff fell.

43 There was sufficient evidence to support the finding of causation made by the trial judge. For these reasons, the appeals should be dismissed.

Contributory negligence

44 The Plaintiff’s cross-appeal was not entirely defensive, but had a defensive element. Thus, if, as the Appellants argued, a finding that an “obvious” risk would not create a duty, because the risk did not arise for a person taking reasonable care for her own safety, after allowing for a degree of inadvertence, then the Plaintiff said she was merely inadvertent and faced a risk despite taking reasonable care for her own safety. Her denial of contributory negligence provided the factual premise for that conclusion.

45 This argument depends, as suggested above in relation to the Appellants’ argument, on a false dichotomy: a duty to take care can co-exist with a level of contributory negligence. In other words, the existence of a foreseeable risk for a person exercising reasonable care for her own safety, being a risk which eventuated in the case of the Plaintiff, may have been partly caused by the contributory negligence of the Plaintiff. On this basis, the Plaintiff can and does maintain her argument as an entirely separate challenge to the Court’s finding.

46 Although, as explained above, his Honour’s description of the spill as “obvious” did not preclude the existence of a duty of care, nevertheless the description provided an appropriate basis for a finding of contributory negligence. There was evidence, in the photographs, to support the conclusion that the spill was, to an extent, conspicuous. Ms Danielli’s evidence confirmed that it was visible, even in the dim light, if one looked at that particular area of the car park floor. There was no evidence that the Plaintiff’s attention was distracted by a passing car or other concern for her own safety. Furthermore, his Honour’s assessment of the extent of her attention to her own safety may well have been influenced by her presentation in the witness box and the manner in which she gave her evidence.

47 The trial judge made a finding that the Plaintiff failed to keep a proper lookout: at [41] and [42]. There is no suggestion that his Honour committed any error in the assessment he undertook. Such matters are, essentially, matters for evaluative judgment in all the circumstances of the case. There is no precise line to be drawn between mere inadvertence, consistent with taking reasonable care for one’s own safety, and the kind of carelessness which can properly reduce the degree of liability imposed on a defendant. I see no reason to interfere with his Honour’s conclusion that there was contributory negligence in the present case.

48 For similar reasons, the assessment of the degree of negligence on the part of the Plaintiff is, inevitably, a matter for evaluative judgment about which minds may differ. An appropriate assessment will fall within a range, adoption of any point within which would be without error. It may be that 25%, the figure adopted by the trial judge in the present case, was at the higher end of that range: it was not, in my view, outside the range. I would not interfere with his Honour’s assessment.

Form of judgment

49 The Plaintiff obtained judgment in the District Court against her employer and the occupier Timberland. The Workers Compensation Act 1987 (NSW) required the damages awarded against an employer to be assessed in accordance with the Act: see Div 3 of Pt 5, ss 151E-151P. As a result the trial judge assessed the damages payable by the employer at $105,549.59 and by the occupier at $103,683.09: Judgment at [79] and [80]. These verdicts were subject to deductions of 25% for contributory negligence, and in the case of the employer, a further deduction for amounts paid under the Act. The trial judge apportioned liability between the defendants on the basis of 30% to the employer and 70% to the occupier: see further Judgment of 11 March 2004, at [10].

50 The reason for the apportionment undertaken on 11 March 2004 was, according to standard practice, to allow the Court to make the necessary calculation which is required where a worker seeks to recover damages from a person other than his or her employer, but also is entitled to take proceedings against the employer. Section 151Z(2) of the Workers Compensation Act is directed to such a situation and seeks to provide for the circumstance where the amount assessed in accordance with the provisions of Part 5, Division 3 of the Act may not be the same as those independently assessed, for the purposes of the claim against the non-employer. The purpose of sub-s 151Z(2) is to ensure that, where the employer is required to meet a proportion of the damages, its proportionate obligation is limited to that which it would have to pay if the damages were assessed in accordance with Part 5, Division 3, that portion of the non-employer’s liability being similarly reduced so that it does not have to pay the balance which it is unable to recover from the employer. As noted by Handley JA in Grljack v Trivan Pty Ltd (unrep, 19 April 1996) at p 5 in relation to s 151Z(2)(c):

“Paragraph (c) requires the difference between two amounts separately calculated to be ascertained and deducted from the damages otherwise recoverable from the third party tortfeasor. The first amount, which the paragraph contemplates will be the larger, is ‘the contribution which the person would (but for this Part) be entitled to recover from the employer’.”

51 The construction of the provision, and the nature of the calculations required, are helpfully set out in the judgment of Allen J in Leonard v Smith (1992) 27 NSWLR 5, approved by this Court in Grljack at pp 7-8 (Handley JA, Sheller and Powell JJA agreeing). A further helpful example of the application of the section is to be found in the judgment of Beazley JA in State of New South Wales v Kennelly (No. 2) [2001] NSWCA 472 at [26]. That calculation cannot be undertaken without determining the relevant apportionment between the respective defendants.

52 As Handley JA noted in Grljack, the section appears to assume that the assessment undertaken otherwise than under the Workers Compensation Act will be the larger. The present case, however, did not conform to that assumption: the assessment against the employer provided the larger figure, so that the damages recoverable from Timberland would not be reduced pursuant to s 151Z(2)(c). (On one view they would have been reduced by a negative amount and thus increased: no party suggested such an outcome and it appears not to conform to the language or purpose of the statutory provision.) That result should have been obvious immediately the assessments were made, with the result that, strictly speaking, no apportionment of liability was required for the purposes of the Act. There appears to have been no claim for contribution before the District Court. Nevertheless, the task was undertaken and the result has not been challenged.

53 So far as the Plaintiff was concerned, the only outstanding matter, as at 25 February 2004 when the substantive judgment was delivered, was the possible inclusion of an amount in respect of past economic loss. None was identified. A precise figure could not have been determined as against the employer, until the amount of payments (if any) made under the Workers Compensation Act had been identified. There may have been no such payments, judgment in fact being entered against the employer for an amount calculated as 30% of the total liability assessed under the Act, without deduction. However, on the leave application in this Court, counsel for Timberland advised that the 30% calculation was approximately equal to the workers compensation payments.

54 Pursuant to an invitation from the trial judge, short minutes were brought in by the parties, and his Honour gave judgments for the Plaintiff against the occupier for $54,433.75 and against the employer for $23,747.62, subject in the latter case to deduction of the payments made under the Workers Compensation Act. These judgments were not correct and the Plaintiff in her cross-appeal sought judgments for the full amounts against each defendant, subject in the case of the employer to deduction of the amounts paid under the Act.

55 At common law a plaintiff who recovered against several concurrent tortfeasors was entitled to several judgments against each for the full amount. This principle was not affected by s 2 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) which authorised apportionment of liability between defendants: Speirs v Caledonian Collieries Ltd (1957) 57 SR (NSW) 483, 503, 512. Accordingly the plaintiff was still entitled, notwithstanding any apportionment, to judgment against each concurrent tortfeasor for the full amount. Apportionment was a matter between the defendants which did not concern the plaintiff.

56 As noted above, the premise underlying s 151Z is that the modification of common law damages effected by Part 5, Division 3 of the Workers Compensation Act means that, although there may be joint tortfeasors responsible for identical damage, the amount payable by an employer may not be the same as that payable by another tortfeasor. As a result, s 151S(1) of the Workers Compensation Act now provides:

“(1) If a judgment is obtained for payment of damages to which this Division applies as well as for other damages, the court is required, as part of the judgment, to declare what portion of the sum awarded by the judgment is damages to which this Division applies.”

57 However, it is apparent that neither s 151Z, nor s 151S affected the principle that a plaintiff was entitled to a judgment against each tortfeasor, even though in different amounts reflecting the differing bases of calculation of liability. Apportionment remains a matter between the tortfeasors. Thus, in Oxley County Council v MacDonald [1999] NSWCA 126, Sheller JA, giving the principal judgment, held at [51] that neither s 151S nor s 151Z affected the common law rule:

“In the relevant parts of s151Z there is nothing which inhibits the Court from entering verdicts for the full amount of the damages payable by each of the first and second defendant, as was done in this case. Nor do I think there is anything in s151S(1) which has this consequence.”

58 The cross-appeal should be allowed on this point and the judgments entered in the District Court set aside. In lieu thereof there should be judgment against the employer for $105,549.59, less 25% for contributory negligence and less payments under the Workers Compensation Act and judgment against Timberland for $103,683.09 less 25% for contributory negligence. Both Timberland and the employer should have liberty to apply to the District Court for the entry of judgments for contribution.

Costs

59 It follows from the foregoing conclusions that both appeals should be dismissed and that, subject to the form of the order, the cross-appeal should also be dismissed.

60 No submissions were directed to any special order as to costs which should, therefore, follow the event. The proper way to view the matter is that the Plaintiff was successful in defeating both appeals, but failed in her own challenge to the question of contributory negligence. As noted above, that challenge was in part defensive, and in part an independent challenge. While it is true that the employer was only brought into the proceedings because of the cross-appeal, the fact that it then brought its own appeal and adopted a position identical to that of Timberland suggests that there should be no distinction made between them, although the employer’s costs will, as a practical matter, undoubtedly be lower than those of Timberland which took the running of the Appellants’ case.

61 In the event, the material relevant to the cross-appeal was all considered for the purposes of the appeals. In my view an appropriate order would be that the Plaintiff have 80% of her costs of the proceedings in this Court, other than the costs dealt with on 27 June 2005, to be paid by the Appellants.

62 The following orders should be made:

A. In matter CA 40402 of 2004 (Timberland Property Holdings Pty Ltd v Bundy):

(1) Appeal dismissed;

(2) Judgment of District Court varied so as to provide a verdict and judgment for the Plaintiff against the Second Defendant, (Timberland Property Holdings Pty Ltd) for the amount of $77,762.25;

(3) The Second Defendant to have leave to seek contribution from the First Defendant in accordance with the apportionment of 30% liability of the First Defendant made by the trial judge on 11 March 2004;

(4) The Appellant to pay the costs of the appeal and cross-appeal in respect of this matter, other than the costs dealt with on 27 June 2005;

B. In matter CA 40608 of 2005 (John Pincham Real Estate Pty Ltd v Bundy):

(1) Appeal dismissed;

(2) Judgment of District Court varied so as to provide a verdict and judgment for the Plaintiff against the First Defendant (John Pincham Real Estate Pty Ltd) for the amount of $79,158.75, less payments made under the Workers Compensation Act;

(3) The First Defendant to have leave to seek contribution from the Second Defendant in accordance with the apportionment of 70% liability of the second defendant made by the trial judge on 11 March 2004;

(4) The Appellant to pay the costs of the appeal and cross-appeal in respect of this matter, other than the costs dealt with on 27 June 2005.

C. Each appellant should have a certificate under the Suitors’ Fund Act in respect of the costs of the cross-appeals if otherwise so entitled.

63 HUNT AJA: I agree with Basten JA.

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LAST UPDATED: 01/12/2005