Wynn Tresidder Management v Barkho [2009] NSWCA 149 (16 June 2009)

Last Updated: 17 June 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Wynn Tresidder Management v Barkho [2009] NSWCA 149


FILE NUMBER(S):
40220 of 2008

HEARING DATE(S):
5 May 2009

JUDGMENT DATE:
16 June 2009

PARTIES:
Wynn Tresidder Management Pty Ltd - Appellant
Fiona Barkho - Respondent

JUDGMENT OF:
Tobias JA McColl JA Young JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 2584 of 2006

LOWER COURT JUDICIAL OFFICER:
Hungerford QC ADCJ

LOWER COURT DATE OF DECISION:
24/4/08


COUNSEL:
RW Washington - Appellant
CS Leahy SC with AR Reoch - Respondent


SOLICITORS:
Thomas Henry Bray Lawyer - Appellant
Ron Kramer Associates - Respondent

CATCHWORDS:
TORTS – negligence – dangerous premises – duty of care – slip and fall in shopping centre – whether occupier’s duty of care discharged by steps taken by subcontractor cleaners to warn of wet floor and to mop wet areas – relevance of entrant’s inadvertence TORTS – negligence – causation – whether causal link between occupier’s duty of care and entrant’s slip – occupier’s conduct materially contributed to entrant’s injury TORTS – negligence – contributory negligence – where entrant did not notice three warning cones on ramp, caution sign or cleaner STATUTES – acts of parliament – enforcement of statutory rights and remedies - whether cl 34 and cl 36 of Occupational Health and Safety Regulation 2001 confer private causes of action on members of public – whether such contrariety between Civil Liability Act 2002 and Occupational Health and Safety Act 2000 and Regulation as to constitute implied repeal – whether claim for breach of statutory duty which is in substance a claim for damages for harm resulting from negligence to be determined in accordance with Civil Liability Act EVIDENCE – admissibility and relevance – opinion evidence – medical reports – admitted without objection - weight of evidence APPEAL AND NEW TRIAL – appeal – excessive or inadequate damages – review of primary judge’s conclusion as to severity of non-economic loss – general principles

LEGISLATION CITED:
Civil Liability Act 2002
Crimes (Sentencing Procedure) Act 1999
Motor Accidents Compensation Act 1999
Occupational Health and Safety Act 2000
Occupational Health & Safety Regulation 2001

CATEGORY:
Principal judgment

CASES CITED:
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Barkho v Glad Cleaning Services Pty Limited and Others (District Court of New South Wales, Hungerford QC ADCJ, 24 April 2008, unreported)
Booksan Pty Ltd v Wehbe [2006] NSWCA 3; (2006) Aust Torts Rep 81 – 830
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
Burrum Corporation v Richardson & Gehrmann [1939] HCA 30; (1939) 62 CLR 214
Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390
Crystal Wall Pty Ltd v Pham [2005] NSWCA 449
David Jones Ltd v Bates [2001] NSWCA 233
Demczuk v Polish Soc Dom Mikolaja Inc (1987) 46 SASR 223
Den Hoedt v Barwick [2006] WASCA 196; (2006) 46 MVR 30
English v Rogers [2005] NSWCA 327; (2005) Aust Torts Rep 81 – 800
Galashiels Gas Co Ltd v O'Donnell or Millar [1949] AC 275
Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1
Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614
Hammond Worthington v Da Silva [2006] WASCA 180
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
Irwin v Salvation Army (NSW) Property Trust [2007] NSWDC 266; 6 DCLR (NSW) 178
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269
O’Connor v S P Bray Ltd [1937] HCA 18; (1937) 56 CLR 464
Phillis v Daly (1988) 15 NSWLR 65
Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304
Smith v Cammell Laird & Co Ltd [1940] AC 242
Smith v Northamptonshire County Council [2009] UKHL 27
Waverley Council v Lodge [2001] NSWCA 439; (2001) 117 LGERA 447
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

TEXTS CITED:


DECISION:
Appeal dismissed with costs.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40220/08

DC 2584/06

TOBIAS JA

McCOLL JA

YOUNG JA

Tuesday 16 June 2009

Wynn Tresidder Management Pty Ltd v Fiona Barkho

Judgment

1 TOBIAS JA: I agree with McColl JA.

2 McCOLL JA: On 5 April 2004 Fiona Barkho, the respondent, was injured when she slipped and fell at the top of a carpeted ramp which provided access to and from a car park at Neeta City Shopping Centre (the “Centre”), a shopping centre under the care, control and management of Wynn Tresidder Management Pty Ltd, the appellant.

3 The shopping centre was undergoing structural reconstruction work at the time of the accident. The respondent alleged that she slipped on water which had leaked through the roof of the centre onto a carpeted temporary access ramp near the entrance to the car park and had been carried onto the tiled floor at the top of the ramp by pedestrian traffic.

4 The respondent commenced proceedings against the appellant in the District Court of New South Wales seeking to recover damages in respect of its alleged negligence and breach of a statutory duty of care said to be created by the Occupational Health and Safety Regulation 2001 (the “Regulation”). Hungerford QC ADCJ found in her favour and awarded her damages of $134,068.16: Barkho v Glad Cleaning Services Pty Limited and Others (District Court of New South Wales, Hungerford QC ADCJ, 24 April 2008, unreported).

Statement of the Case

5 At all relevant times the appellant was the occupier and manager of the Centre. It was common ground at trial that as such, it had care, control and management over the property on which the accident occurred.

6 The appellant had entered into a contract with Glad Cleaning Services Pty Ltd (“Glad”) for the cleaning of the Centre. Glad, in turn, had subcontracted with Moonlight Cleaning Services Pty Ltd (“Moonlight”) to provide those cleaning services. It was a term of the contract between Glad and Moonlight, that the latter would comply with all reasonable instructions the appellant gave.

7 The respondent also joined Moonlight as a defendant in the proceedings. The appellant cross-claimed against both Glad and Moonlight. It is unnecessary to explore the basis of the cross-claims. The primary judge held (at [66]) that Moonlight had not breached the duty of care it owed the respondent and (at [93]) that, in turn, there was no basis for the appellant’s cross-claim. The appellant’s cross-claim against Glad also failed. Both cross-claims were dismissed and the appellant was ordered to pay the costs thereof. There is no appeal from his Honour’s orders in relation to the cross-claims. However it will, in due course, be necessary to explain the basis upon which the Moonlight was exonerated as that highlights the basis upon which the appellant was found liable.

8 The primary judge’s factual findings (at [37]) as to the circumstances of the accident and the contractual arrangements between the appellant, Glad and Moonlight are not challenged and it is convenient to set them out insofar as they are relevant to the issues on appeal. Mr Nagem, the cleaner to whom his Honour refers, was employed by Moonlight:

“(1) The Neeta City Shopping Centre was undergoing major reconstruction.

(2) The carpeted ramp was a temporary structure to provide access from the level 2 car park to the retail shops below and an exit to the street on level one.

(3) The foyer area at the top of the ramp near the sliding doors had a vinyl or terrazzo floor – it was a hard floor**.

(4) With the reconstruction work, the ceiling in the ramp and foyer area was open with no cladding but covered by a timber roof.

(5) It had been raining very heavily during the night of 4 April 2004 and [there was] intermittent rain on the morning of 5 April 2004.

(6) On arriving at work at 6am on 5 April 2004, the cleaner, Mr Nagem, noticed water leaking through the roof and onto the carpeted area. He then placed three yellow warning cones along the length of the ramp and reported the leak to a security guard.

(7) Security instructed Mr Nagem to dry the area and he did so. The leak continued notwithstanding a plastic cover placed over the timber roof and, with the Centre opening to the public at 8am and on instructions, he placed a yellow caution sign on the vinyl/ terrazzo floor near the sliding doors; water flowed from the carpet onto the hard foyer surface.

(8) Mr Nagem, to meet the continuing problem, dry-mopped the wet area every 20-30 minutes on instructions from security. There was, however, a path along the ramp and across the tiled floor to the sliding doors which was free of water.

(9) The presence of water on the floor in the area concerned posed a foreseeable risk to the safety of persons using the area.

(10) Around 9.30am the plaintiff parked her car in the level 2 car parks and proceeded through the sliding doors, across the vinyl/terrazzo floor and down the carpeted ramp to the street exit. She did not notice the water leak or the wet floor or the three warning cones and caution sign which were in place.

(11) Shortly after 10am the plaintiff re-entered the centre and ascended the ramp to return to her car; she was walking with her head down looking at the floor. Again, she did not see any water on the floor or the three warning cones on the ramp. As she reached the top of the ramp just before the hard surface she first saw the yellow caution sign near a cleaner using a mop and bucket.

(12) Momentarily as she stepped onto the vinyl/terrazzo floor, the plaintiff slipped on the surface which was wet from water transferred from the carpet area due to the ceiling leak.

(13) The plaintiff’s footwear was a pair of thongs which appeared to have smooth soles.

(14) The plaintiff suffered injury as described by her, particularly to the left hand and wrist and as found on clinical examination by Dr Yousif.

(15) Wynn Tresidder was the occupier of the Centre with responsibility for its care, management and control, including for operations maintenance, security and cleaning; it directed the work to be done.

(16) Glad contracted with Wynn Tresidder to provide cleaning services at the Centre and agreed in doing so to ensure compliance with all relevant safety regulations and in a competent, diligent and professional manner in accordance with industry best practice.

........

(18) Glad, with the consent of Wynn Tresidder subcontracted the cleaning services to be performed at the Centre to Moonlight. ....

(19) Under the subcontract between Glad and Moonlight, Moonlight was to comply with all reasonable instructions from Wynn Tresidder.

....

(21) There was no contract between Moonlight and Wynn Tresidder.” (emphasis added)

**Photographs of the floor reveal it to have been tiled and, accordingly, I shall refer to it as “tiled floor”.

9 Some further facts should be set out to illuminate the primary judge’s findings.

10 A hand drawn plan reproduced in the Blue Book indicates that the three warning cones Mr Nagem placed on the ramp appeared to be to its left side, whereas the water was leaking onto the ramp on the other side. The ramp was approximately five to six metres wide. There was a metal barrier running down its centre on the carpeted area. The warning cones appear to have been to the left side of the ramp. However in his oral evidence Mr Nagem appeared to say they were on the side going to the car park. Mr Nagem’s triangular warning sign appears to have been near a vending machine which was some distance from the intersection between the carpeted area and the tiled floor where the respondent fell. However, again, Mr Nagem’s oral evidence about the sign’s position was unclear. It was suggested, and he appeared to agree, that he moved the sign along the tiled floor as he mopped. The primary judge’s conclusion that the yellow caution sign was near the sliding doors indicates he accepted that that was its position when the respondent fell.

11 After Mr Nagem reported the leak to security, builders working on the Centre reconstruction placed plastic over the roof of the ramp to stem the leak. However the leaks continued during the morning.

12 The primary judge recorded (at [32]) Mr Nagem’s evidence:

“... as people used the ramp they did encounter water on the carpet but there was [a] path on one side of the carpet across the tiled area to the sliding doors which was dry and free of water. He agreed it was possible to have taped off the wet area to allow use of that clear pathway but that was not done as he did not have any barrier tape nor was he instructed to so limit access in the area – his job, as he explained it, was to place the warning signs and dry the area every 20 to 30 minutes; he was not provided with any matting such as carpet strips or rubber backed mats. There was much attention during Mr Nagem’s evidence about various ways of access to and from the second level car park if the ramp was not to be used. He stated that the only way was through this foyer area and the sliding doors. I have to say, however, that his evidence on this aspect was somewhat inconclusive.” (emphasis added)

13 The mechanism by which water was transferred from the carpeted area onto which it was leaking to the tiled floor was a constant process. It happened because people using the ramp to gain access to the car park walked through the wet carpeted area and water was transferred from their feet to the tiled floor. Although Mr Nagem mopped the tiled floor every 20 minutes, he stated that even after he mopped, the tiled floor was damp as it could not dry quickly. It was for that reason that he put a wet floor sign in place.

14 After the shopping centre opened at 8am Mr Nagem observed that every time he went to the top of the ramp there was water on the tiled floor, sometimes a lot of water.

15 Mr Nagem knew from his experience as a cleaner that water on a tiled floor was dangerous, one of the dangers being that sometimes it was difficult to see. He appreciated that if he saw water on the floor he should mop it up immediately because of the danger.

16 Mr Nagem agreed that if he had been given barrier tape, and if management had told him to do so, he would have tied the tape in a manner which would have closed that part of the ramp onto which the water was leaking. Mr Nagem also agreed that if the wet side of the ramp had been taped off people could be directed along the dry area of carpet towards the car park doors and that that would take them onto a dry area of the tiles. It was then put to him that in that way people could avoid contact with the water to which he answered, non-responsively, “... people coming up and down the same place with the trolleys, it’s going to be more dangerous to their customer”. He appeared to accept that people with shopping trolleys could nevertheless pass each other on one side of the ramp although he added “ ... some problem with the trolleys though”.

17 Finally, relevantly, Mr Nagem said that between 8am and 10am nothing was done to stop the water from coming into the building and management did nothing to try and stop people from walking on the wet carpet thereby transferring water onto the tiled floor and that the only instructions he was given about the water leakage, was to “ ... secure the area, to clean the area about every 20 minutes, put the wet floor sign ... ”

18 The appellant’s then manager of the Centre, Mr Rodgers, gave evidence. He could not remember whether there were routes to the level two car park other than by using the temporary ramp and the sliding door foyer area but said that the level two car park could be closed with patrons directed to car parks on levels three and four without the temporary ramp having to be used.

19 Mr Rodgers was responsible for, and supervised, the operations, maintenance and security functions of the Centre. He said the cleaners worked for Moonlight, but took directions from the security guards if any problems arose. He said an event concerning a safety matter was to be referred by a security guard to the operations manager to deal with, although the security guard also had authority to direct patrons to the Centre and to close areas or erect barricades: primary judgment (at [34]).

20 On the day of the accident Mr Rodgers arrived at the Centre at 7.30 am and went to his office on level three. It does not appear he became aware of the water leakage until he read an incident report of the respondent’s accident prepared by a security guard about it. He then inspected the ramp area. He was unsure of the time of the inspection, but it took place during the morning of the day in question. He saw water leak by a slow drip every few seconds from the roof onto the carpeted area of the floor. At the time he saw it the wet area was circular and about one metre in diameter and spreading to surrounding carpet tiles. He had an uncertain recollection as to whether there were cones on the ramp warning of the presence of water on the floor. He saw people walking in both directions on the ramp. He did not issue any further instructions as to what action should then be taken: primary judgment (at [35]).

21 Mr Rodgers said that the security guards (presumably those to whom Mr Nagem reported the leak) would take action to make sure the situation was safe which might mean closing off an area to the public or barricading around the wet area. He said the security guards had authority to put up a barrier or barricade or some device which would stop the public going into an area suspected to be dangerous.

22 Mr Rodgers agreed that it was possible for the second level car park to be closed off with cars being directed to higher levels where parking was available.

Primary Judgment

23 The primary judge concluded (at [65]) that the question of breach of duty had to be considered in the context of a persisting water problem during the morning of 5 April 2004 from a structural defect during reconstruction work which was not corrected and posed a foreseeable risk to the safety of persons using the area.

24 The respondent’s case against Moonlight, in the final analysis, was essentially that it failed to warn her of the presence of the risk of water on the tiled floor and failed to take reasonable care for her safety: primary judgment (at [59]). The primary judge found that after he discovered the leak, Mr Nagem had followed the security guard’s instructions to dry the area and had placed three warning cones on the ramp and a caution sign near where he mopped. The primary judge held that it was no part of Moonlight’s responsibility or obligation, nor was it within its authority, to close the area or otherwise barricade it. He found that Mr Nagem could not attend to rectifying the water leak and that he did all he could reasonably in relation to relieving its consequences from a cleaning perspective. He held that Mr Nagem performed his work within the scope of Moonlight’s obligations and within the scope of Glad’s obligations to the appellant. Accordingly, the primary judge held (at [66], [76]) that the case in negligence was not made out as against Moonlight.

25 The respondent’s case in negligence against the appellant was that it breached its duty of care in failing to restrict her access to the area where she fell when it knew or should have known that walking on the wet floor exposed her to a risk of injury; in failing to provide any warning to her by sign or orally, of the presence of water on the floor; in failing to place a rubber mat or similar item at the location of the accident so as to reduce or eliminate the risk of a slip and fall occurring; and generally in failing otherwise to take adequate precautions for her safety. She also alleged the appellant had breached a statutory duty of care it owed her as the controller of the premises relevantly, as pressed at trial, pursuant to cl 34 and cl 36 of the Regulation.

26 The primary judge held (at [67]) that, as the entity with the care, control and management of the Centre, the appellant’s duty of care to the respondent was an over-riding obligation. He concluded that it breached its duty of care by not providing premises which were reasonably safe for persons such as the respondent by reason of the water leaking onto the floor of the premises. While he accepted that the appellant had not become aware of the leak hazard until after the respondent’s fall despite it being reported by Mr Nagem to security, and had, accordingly, issued no instructions to deal with the continuing leak, the primary judge concluded (at [67]):

“Clearly, in my view, there was no proper system in place to reasonably attend to the water leak – that was uniquely the failure of Wynn Tresidder. Then the leak having persisted, there was no intervention to take reasonable action such as closing the area to the public, arranging an alternative route, restricting access by barricades or positioning a guard to direct persons, such as the plaintiff, to follow a path free from the water hazard – that, too, was uniquely the failure of Wynn Tresidder”.

27 The primary judge dealt (at [68] – [75]) with other defences the appellant relied upon, including matters arising under the Civil Liability Act 2002 such as obviousness of risk (s 5G). Those matters are not pursued on appeal and it is unnecessary to recount his Honour’s detailed consideration of this issue. It should be noted, however, that he accepted (at [75]) the respondent’s evidence that she was unaware of the water on the floor and “that its presence was simply not a matter to which she attended”. He held (at [76]) that the respondent had made out her case in negligence against the appellant.

28 The primary judge then dealt with the breach of statutory duty case. As I have said, the respondent only persisted with her claim under cl 34 and cl 36 of the Regulation. His Honour described those clauses (at [77]) as respectively requiring “a controller of premises to identify any foreseeable hazard on the premises that has the potential to harm the health or safety of any person accessing, using or egressing the premises and to eliminate or control any such hazard.” It was common ground at trial that the appellant was the controller of the Centre within the meaning of cl 33 of the Regulation.

29 The primary judge followed his decision in Irwin v Salvation Army (NSW) Property Trust [2007] NSWDC 266; 6 DCLR (NSW) 178 (at [104] - [108]) to conclude that cl 34 and cl 36 of the Regulation gave the respondent a civil action for damages for breach of statutory duty. The primary judge concluded (at [84]) that the breach of statutory duty against the appellant had been established, saying:

“81. In considering whether this count be made out it is necessary to take into account that the duty so imposed on Wynn Tresidder was of a strict kind, that is, to require a specified condition to be reached and not merely to take reasonable steps to prevent a foreseeable risk of harm: cl 34(1) obliged the taking of steps to identify any foreseeable hazard and cl 36(1) required the elimination of any risk subject to the cl 36(2) exception that if elimination was not reasonably practicable then Wynn Tresidder as the controller of the premises had to control the risk.

82. As to cl 34(1), I do not think in the circumstances that Wynn Tresidder, particularly having in mind the evidence of Mr Rodgers, relevantly identified the risk of the leaking water onto the floor in the area concerned with the plaintiff’s fall. It is true it had a system in place for such events by use of the operations manager, security guards and cleaners, but the fact is, in my view of the circumstances, identification of the hazard was only complete by a closing or barricading of the area or, as being reasonably practicable, the positioning of a guard near the hazard to direct users of the area of its presence – it may be fairly said that a ceiling leak during a period of heavy rain in an area open to public use was a serious fault to be dealt with in the interests of safety. Clause 34(1) has been breached.

83. For the same reasons, I think Wynn Tresidder failed to comply with cl 36(1) and (2). The water risk was not eliminated from the premises as persons, including the plaintiff, used the area and Wynn Tresidder did not sufficiently control the risk. Clause 36(1) and (2) has been breached.”

30 The primary judge held the respondent had not been guilty of contributory negligence, finding (at [87]):

“It is true there were warning signs, but...sufficiently away from the actual location of the water on the tiled floor where the plaintiff fell just before the sliding doors. The plaintiff said she was looking where she was going with her head down and there was no evidence other than a photograph which was inconclusive that the thong footwear was inadequate. The scenario here was of the plaintiff walking up the carpeted ramp and at the top of the ramp on the flat vinyl terrazzo surface one step from the end of the carpet she slipped on the water accumulated the floor and fell. I find no negligence in that.”

31 His Honour also found (at [88]) that contributory negligence was not available as a defence to the breach of statutory duty count, “at least as here where the plaintiff was not an employee of Wynn Tresidder”. This was because, conceptually, “an injured plaintiff cannot be seen to contribute to the defendant’s failure to observe a statutory obligation on it”.

32 After the respondent fell, and after she gave some details of the incident to a security guard, and received some first aid from him, she returned to her car and went to see her general practitioner. She was complaining of pain in her back, her left ankle, her left hand and wrist. Her left hand and ankle were swollen. Her general practitioner arranged for an x-ray of her left wrist that day, a CT scan was performed the next day.

33 After the fall, the respondent suffered injury to her left wrist and hand, in particular, with related soft tissue injuries to her neck, shoulders, lower back and legs for which she sought medical treatment from various practitioners. She also had problems in her right wrist. Her treatment included a carpal tunnel release operation on her left hand undertaken in June 2007 to alleviate persistent problems from the injuries. In April 2008 she continued to need regular care from her general practitioner in relation to her injuries: primary judgment (at [38], [95]).

34 Prior to the accident, the respondent was employed on a part-time basis as a carer of pre-school children. The primary judge fund that as a consequence of her injuries, she had not been able to return to that employment because she was unable to perform the physical work it entailed: see primary judgment (at [2], [95]).

35 The primary judge concluded that the views of the general practitioners qualified on behalf of the appellant and those qualified on behalf of the respondent diverged widely in terms of causation, injury and continuing problems. He observed (at [54]) that he was assisted in resolving those differences by the respondent’s evidence which was “temperate, not exaggerated in any way, [and] without any gloss”. He found that the respondent had taken steps to pursue an alternative teaching career which was within her physical capabilities and other steps, including resolving a weight issue, so that her disabilities could be better managed and controlled. He discounted the evidence of one of the respondent’s experts, Dr Lawson, which he regarded as “at the extreme” and inconsistent in that respect with the other three medical practitioners upon whose reports the respondent relied. With that finding in mind, his Honour concluded (at [56]) that he preferred the respondent’s medical practitioners’ evidence, to the appellant’s.

36 The primary judge concluded (at [96]) that on the basis of the respondent’s medical reports, it was apparent that the respondent still had partial incapacity for heavier work and that “significant ongoing disability was found with her condition which was considered to have reached maximal medical improvement but with a guarded prognosis.” Accordingly, he assessed (at [97]) non-economic loss at 26 per cent of a most extreme case, and calculated damages as 8 per cent of the maximum amount under s 16(2) of the Civil Liability Act. After taking into account past and future out of pocket expenses, past and future economic loss, and loss of superannuation benefits the primary judge (at [105]) awarded the respondent $134,068.16.

Grounds of Appeal

37 The appellant complained that the primary judge erred in respect of both liability and damages. Insofar as liability in negligence is concerned, it complained that the primary judge erred in failing to find its duty of care had been discharged by Moonlight’s conduct and in finding it liable even though he failed to find any causal connection between its alleged negligence and the respondent’s injury. It also complained that the primary judge erred in finding that it owed a statutory duty of care to the respondent founded in the Regulation. Finally the appellant complained that the primary judge erred in failing to find contributory negligence on the part of the respondent.

38 As to damages the appellant complained that the primary judge erred in accepting the respondent’s medical reports in that he failed to apply the principles enunciated in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. It also complained that his Honour erred in finding that the respondent had suffered non-economic loss in a percentage of a most extreme case in excess of the statutory threshold or in any amount at all.

Submissions

39 The essential submission made by Mr W Washington, who appeared for the appellant on appeal and at trial, was that the primary judge gave no weight to evidence that the ramp was then the only access to and from the car park and, too, to the fact that it had a central division dividing upwards and downwards pedestrian/shopping trolley traffic. He complained that his Honour ought to have inferred that if the upwards side of the ramp had been closed, it would have created, rather than obviated, hazards. He also submitted that the steps Moonlight took in discovering the leak, erecting warning signs, mopping the floor regularly and verbally warning the respondent momentarily before her fall was sufficient, in the circumstances, to discharge both Moonlight’s and its duty of care. Mr Washington also argues the primary judge failed to consider the steps the builders took, at the security guards instigation, to cover the leaking roof.

40 While Mr Washington accepted that the appellant owed a duty of care even to careless customers, he argued that that was not a general duty to protect careless people from the consequences of their own carelessness: Phillis v Daly (1988) 15 NSWLR 65 (at 74), per Mahoney JA quoted with approval by Davies AJA in David Jones Ltd v Bates [2001] NSWCA 233 (at [18]).

41 Mr Washington contended in his written submissions that an occupier in the appellant’s position was entitled to expect that a person in the respondent’s position would not be so inattentive as to fail to observe three yellow warning pillar signs, fail to have regard to a cleaner actively mopping the floor in her intended path and disregard a verbal warning from the cleaner, as well as a warning sign he had set up adjacent to him. In oral argument, Mr Washington conceded he could place minimal reliance on the verbal warning. This was an appropriate concession when regard is had to Mr Nagem’s evidence that the respondent fell just as he uttered his last word.

42 Mr Washington submitted that in all the circumstances the steps the appellant, through Moonlight, had taken satisfied its burden of a reasonable response without it having to take the additional step of closing off the area in question with possible consequent inconvenience and danger.

43 Mr Washington also relied upon what he contended was the respondent’s failure to take reasonable care for her own safety, to submit that her failure to take heed of the four signs and the sight of a cleaner actively mopping the area, led to the result that there could be no causal connection between any duty of care the appellant might have owed and the harm the respondent suffered.

44 Next, Mr Washington submitted that the primary judge erred in determining that cl 34 and cl 36 of the Regulation gave the respondent a cause of action for alleged breach. In the course of oral argument the Court raised with Mr Washington the threshold question whether the Occupational Health and Safety Act 2000 (the “Act”), pursuant to which the Regulation was made, applied to the circumstances of non-employees such as the respondent. He accepted this point had not been raised at trial. I shall return to this issue.

45 Finally, on liability, dealing with the issue of contributory negligence, Mr Washington submitted, substantially for the reasons he relied upon on the issue of breach, that the respondent had been guilty of contributory negligence. He also submitted that the primary judge’s conclusion that contributory negligence was unavailable to the appellant in respect of the statutory counts was in error having regard to Booksan Pty Ltd v Wehbe [2006] NSWCA 3; (2006) Aust Torts Rep ¶81 – 830 (at [167]) per Ipp JA (Giles and Tobias JJA agreeing).

46 As to damages, Mr Washington submitted that the primary judge ought to have concluded that none of the respondent’s medical reports satisfied the criteria for such documents enunciated by Heydon JA in Makita (at [85]) in that they failed to identify observed and assumed facts and that the basis of the opinions were unexplained to the extent that his Honour ought to have concluded that the reports comprised largely “a combination of speculation [and] inference”: HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 (at [41]) per Gleeson CJ.

47 Mr Washington argued that on a proper analysis of the respondent’s medical reports the only finding open to his Honour was that the respondent suffered a soft tissue injury to one hand of reasonably short duration. He contended that if Makita was applied, the Court ought to conclude that the respondent suffered little or no long term non-economic loss from the consequences of the fall and, in any event, insufficient non-economic loss to place her at or above the statutory threshold in s 16(1) of the Civil Liability Act.

48 Mr C S Leahy SC, who appeared with Mr A R Reoch for the respondent on appeal, but not at trial, pointed out that there was no evidence that the respondent had heard Mr Nagem’s verbal warning prior to falling, nor that it was, if given, given in time for her to react to it. Mr Leahy also drew attention to Mr Rodgers’ evidence that the car park on level two could have been closed with patrons directed to car parks on levels three and four without them having to use the ramp to level two.

49 Mr Leahy submitted that the primary judge’s finding that the appellant was in breach of its duty of care was amply supported by Mr Nagem’s evidence that it was possible to tape off the wet area on the ramp to allow use only of the clear (dry) pathway, but that he had not done so as he did not have any barrier tape nor was he instructed to limit access in that area. He also drew attention to Mr Nagem’s evidence that he did not place matting on the hard surface, as he had not been provided with any.

50 Mr Leahy emphasised that the appellant had ultimate control of the Centre to support the primary judge’s conclusion that the steps Moonlight took did not adequately discharge the appellant’s duty of care. He pointed to the evidence that while Moonlight worked at the direction of the security guards, if any problem arose, the security guards were required to refer an event concerning a safety matter to the appellant’s operations manager, although the security guards themselves had authority to direct patrons to the Centre and to close areas or erect barricades: see primary judgment (at [34]).

51 Mr Leahy submitted, in essence, that the appellant’s submissions failed to recognise (although they did not challenge) the primary judge’s conclusion that the case concerned a system for ensuring the safe use of premises where there was a structural defect during reconstruction work, rather than being merely a cleaning case. He pointed out that the foregoing matters were not delegated by the appellant which retained its duty to keep the premises safe.

52 Mr Leahy submitted that this was not a case where the respondent had failed to take reasonable care for her own safety. First, he pointed to the fact that there was no evidence the respondent had heard Mr Nagem’s warning and that, in any event, the warning “be careful ma’am” was of a general nature and did not draw her attention to the hazard she was about to encounter. Next, Mr Leahy acknowledged the respondent did not see the safety warning cones, but pointed out that they said “slippery floor” in an area where the floor was not slippery. Further, while the respondent saw the cleaner when she reached the top of the carpeted area of the ramp, he was mopping the floor on the opposite side of the tiled floor, near the sliding doors to the car park. While she did not see the warning sign near him until after the fall having regard to the primary judge’s finding that it was not near the area where the respondent fell, it did not warn her about the area upon which she was about to place her foot.

53 Mr Leahy submitted that it was open to the primary judge to find, as a question of fact, that the appellant had breached its duty of care and that that conclusion should not be disturbed.

54 Mr Leahy also submitted that the primary judge did not err in concluding that cl 34 and cl 36 of the Regulation conferred a private right of action upon the respondent which had been breached. In response to the threshold point the Court raised, he argued that the scope of the Act did extend beyond the workplace.

55 Mr Leahy submitted that the primary judge’s conclusion that the respondent had not been guilty of contributory negligence should not be disturbed in circumstances where his Honour had found that the warning cones and sign were not in the area where she was exposed to danger but on the carpeted ramp (warning cones) and near the cleaner near the vending machine on the other side of the sliding doors (warning sign). He pointed to the fact that the primary judge found that the respondent was looking where she was going. As to the appellant’s complaint that the respondent was wearing thongs, Mr Leahy pointed out that that was hardly a remarkable circumstance, “even in shopping centres”.

56 Mr Leahy’s written submissions did not address the decision in Booksan. I understand that to amount to a concession that contributory negligence, if established, was an available defence in the respondent’s case albeit that she relied, in part, on breaches of statutory duty. I shall return to the significance of this implicit concession.

57 Turning to damages, Mr Leahy submitted that it was a matter for the primary judge to evaluate the medical reports in circumstances where all medical reports were admitted by consent and where the appellant did not seek, by voir dire, or at all, to challenge their admissibility and, in particular, to argue that they offended any rule of evidence or law. He contended that the appellant’s real complaint was that the primary judge had preferred the appellant’s medical evidence to that the appellant relied upon. He submitted that the primary judge had carefully evaluated the medical evidence and had been assisted in that task by his acceptance of the respondent’s evidence.

58 As to non-economic loss, Mr Leahy drew attention to the medical evidence which supported the proposition that the respondent suffered and continued to suffer from significant ongoing disability with her left hand and wrist pain with sensory disturbance, loss of strength and dexterity, post-traumatic tenosynovitis in her left hand with chronic regional pain syndrome with a component of early carpal tunnel syndrome and mild and intermittent pain and stiffness in her lower back consistent with a lumbar strain injury. He also drew attention to the fact that the respondent had been unable to increase her duties as a child care worker which, prior to the accident, had been her intention once her obligations in respect to her own children diminished. He pointed to the fact that the respondent’s physical disabilities arising from the accident inhibited her ability to resume her previous work but that she had undertaken steps to qualify for alternative employment. In those circumstances he contended that the primary judge’s finding of 26 per cent non-economic loss ($35,500) was within a proper discretionary range.

Negligence: Consideration

59 As I have said, it was common ground that the appellant was the occupier of the Centre. This status arose from its care, control and management of the premises. By virtue of its power of control, it owed the respondent, as a lawful entrant to the Centre, a duty to take reasonable care to avoid a foreseeable risk of injury. The measure of the discharge of its duty was what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 487 - 488) per Mason, Wilson, Deane and Dawson JJ, approving the observations of Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 (at 662 – 663); see also Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 (at [17] – [18]) per Gleeson CJ (Gaudron J agreeing (at [42])); (at [60]) per Kirby J; (at [112]) per Hayne J (Gaudron J agreeing (at [42])); (at [138]) per Callinan J; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 (at [45]) per Gummow J (Heydon J agreeing).

60 Determining whether the duty had been breached turned upon the probability of the risk occurring, the magnitude of the consequences and the expense or inconvenience of eliminating the risk: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (at 47) per Mason J. In the assessment of breach, weight had to be given to the expectation that the respondent would exercise reasonable care for her own safety and also to the possibility of “inadvertence” and “thoughtlessness”. However it must also be accepted that while persons exercising reasonable care will be able to avoid injury in some situations, other situations present “a foreseeable risk of harm” even to persons taking such care: Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 (at [160], [163]) per Gaudron, McHugh and Gummow JJ; Dederer (at [45] – [46]) per Gummow J.

61 While both the appellant and Moonlight had a degree of control and management in relation to the premises, Moonlight’s opportunity to deal with the consequences of the leaking roof was, as the primary judge found, circumscribed by its contract. In particular, it had no authority to barricade areas of the Centre. It was open to the primary judge, accordingly, to conclude that the answer to the question whether the appellant and Moonlight had breached their duties of care was not necessarily answered merely by reference to what Moonlight did. Their duties of care were not coterminous, but depended upon the extent to which they could exercise control and management: see Burrum Corporation v Richardson & Gehrmann [1939] HCA 30; (1939) 62 CLR 214 (at 228) per Latham CJ; Demczuk v Polish Soc Dom Mikolaja Inc (1987) 46 SASR 223 (at 231) per von Doussa J.

62 The appellant does not challenge the proposition that the wet floor of the ramp and the tiled area posed a foreseeable risk of injury to people in the respondent’s position. Accordingly, I turn to the question of breach. That issue has, of course, to be considered on the basis that the steps Moonlight took adequately, but only partially, discharged the appellant’s duty of care.

63 I would first reject the appellant’s complaint that the primary judge erred on the issue of breach in failing to consider the steps taken to cover the leaking roof. In my view that complaint affords the appellant no solace in circumstances where the steps taken were clearly inadequate. Notwithstanding plastic sheeting apparently being placed over some part of the roof covering the ramp area, the leak persisted throughout the morning. Indeed the roof was still leaking when Mr Rodgers inspected the ramp area an hour or so after the respondent fell.

64 I would also reject the appellant’s complaint that the primary judge erred in concluding that the appellant breached its duty of care by failing to take steps to close the area of the carpeted ramp onto which water was leaking so as to permit pedestrian passage along and across a dry path. In my view it was open to the primary judge to conclude from Mr Nagem’s and Mr Rodgers’ evidence that steps could have been taken to prevent members of the public accessing that part of the ramp onto which the water was falling. There was no suggestion such a step would have involved any cost. It was a simple step which would have prevented the transfer of water from the carpeted ramp to the tiled area where, as Mr Nagem frankly acknowledged, it was a danger.

65 Nor do I accept the appellant’s submission that the primary judge erred in not inferring that taking that step would have created, rather than obviated, hazards. The evidence disclosed that one side of the ramp was wide enough to allow two shopping trolleys to pass. Further, closing of the upwards ramp could be expected to have been a temporary measure, pending (prompt) rectification of the leak problem.

66 Requiring shoppers to negotiate the passage of shopping trolleys on one side of the ramp was, in my view, a reasonable step for the appellant to have taken. It might be inferred that shoppers could negotiate the successful passage of their trolleys without incident, just as such passage is constantly negotiated within supermarket aisles. Taking that step would have avoided exposing people in the respondent’s position to the risk of slipping on a danger they could not easily observe: a thin film of water on a tiled floor. Further, as Mr Washington conceded in argument, by continuing to allow pedestrians such as the respondent to walk over the wet area, it was entirely possible that it was she who had transferred the water from the carpet onto the tiled floor. Diverting shopping centre users to the dry side of the ramp could easily have obviated the risk of that occurring.

67 I would also reject the appellant’s complaint that the primary judge erred in not giving sufficient weight to what it asserted was the respondent’s carelessness. In my view, the appellant has not pointed to any evidence which demonstrates error in his Honour’s conclusion that the respondent was looking where she was going and that, while Moonlight discharged its (and, as I have said, in part, the appellant’s) duty of care in placing the warning cones, they were sufficiently distant from the actual location of the water on which she fell as not to alert her to the danger she was about to encounter.

68 As the primary judge’s finding on the issue of “obvious risk” indicates, the respondent was indeed unaware of the water on the tiled floor. Mr Nagem’s evidence, and common sense, demonstrated that that was foreseeable, the water being invisible on a tiled floor. Moreover, as I earlier indicated, and as Mr Washington conceded, it is entirely possible that the respondent herself transferred the water onto the tiled floor after walking through the damp patch on the carpeted ramp. Thus she was exposed to risk of injury even when she was looking where she was going due to the “invisibility” of the danger she was about to encounter.

69 I would add, in relation to the appellant’s submission concerning the warning cones, a reference to Bryson J’s observation (Meagher and Heydon JJA agreeing) that “[e]very day experience does not support attributing talismanic force to signs as means of averting dangers [and] [i]t is commonplace to see warning signs ignored”: Waverley Council v Lodge [2001] NSWCA 439; (2001) 117 LGERA 447 (at [35]). However I repeat that I discern no error in the primary judge’s conclusion that the respondent did not see the warning cones.

70 For similar reasons I would reject the appellant’s complaint that the primary judge erred in not concluding the respondent was guilty of contributory negligence.

71 It was not entirely clear whether Mr Washington pressed the causation argument. However, if he did, I would reject it. It depended, to some extent, on the same factual substratum as was relied upon in support of the proposition that the respondent failed to take reasonable care for her own safety. As to that I would merely note that the appellant was liable if its wrongful act or omission resulted in increased risk of injury to the respondent. If that risk eventuated, the appellant’s conduct materially contributed to the injury she suffered whether or not other factors also contributed to that injury occurring: Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 (at [27]) per McHugh J; approved Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 (at [31]) per Gaudron J, (at [127]) per Callinan J; see also English v Rogers [2005] NSWCA 327; (2005) Aust Torts Rep ¶81 – 800 (at [73]) per Mason P (Santow JA and Brownie AJA agreeing).

72 In my view the primary judge did not err in concluding that the appellant’s negligence caused the respondent’s injury.

Statutory Causes of Action: Legislative Framework

73 The long title to the Occupational Health and Safety Act 2000 explains that it is “An Act to secure the health, safety and welfare of persons at work; to repeal the Occupational Health and Safety Act 1983; and for other purposes”. Its objects are set out in s 3. It is unnecessary to set them out in full. It is sufficient to observe that the first object is “to secure and promote the health, safety and welfare of people at work” (s 3(a)) and that the remaining objects are all directed to reinforcing the manner in which that obligation should be discharged in respect of “people at a place of work” (s 3(b) and, in substance s 3(c), s 3(e)). The only exception is s 3(h) which concerns dealing with “the impact of particular classes or types of dangerous goods and plant at, and beyond, places of work.”

74 “[P]lace of work” is defined in s 4 to mean “premises where persons work”.

75 Part 2 of the Act deals with “Duties relating to health, safety and welfare at work”. Division 1 covers “General duties”. Section 8(1), which appears in that Division, requires an employer to “ensure the health, safety and welfare at work of all the employees of the employer”. Section 8(2) provides:

“(2) Others at workplace

An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.”

76 Section 9, which also appears in Division 1, requires “[a] self-employed person [to] ensure that people (other than the employees of the person) are not exposed to risks to their health or safety arising from the conduct of the person’s undertaking while they are at the person’s place of work”.

77 Section 10, which also appears in Division 1, deals with the duties of controllers of work premises, plant or substances. A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health: s 10(1). The duties of a person under s 10 apply only “if the premises ... are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person” (s 10(3)(d)) and “do not apply to premises, plant or substances used only by employees of the person”: s 10(3)(a). “Controller” is not defined in s 10 but includes “a person who has only limited control of the premises”, to the extent of that control and “a person who has, under any contract or lease, an obligation to maintain or repair the premises”, to the extent of that obligation: s 10(4).

78 A person who contravenes a provision of Division 1, whether by act or omission, is guilty of an offence against that provision and is liable to the maximum penalty set out in s 12.

79 Part 2, Division 3 (“Related duties”) requires “[a]n employee ..., while at work, [to] take reasonable care for the health and safety of people who are at the employee’s place of work and who may be affected by the employee’s acts or omissions at work”: s 20(1). Penalties for breaching s 20 appear at the end of that section indicating that contravention of the section is an offence against the Act, punishable on conviction by a penalty not exceeding the penalty so specified: s 18, Crimes (Sentencing Procedure) Act 1999.

80 Part 2, Division 4 sets out “Ancillary provisions”. Section 32, which appears in that Division, provides:

“32 Civil liability not affected by this Part

(1) Nothing in this Part is to be construed:

(a) as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provision of this Part, or

(b) as conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings.

(2) Subsection (1) does not affect the extent (if any) to which a breach of duty imposed by the regulations is actionable (including any regulation that adapts a provision of this Part).”

81 Part 3 deals with regulations. Section 33 is the usual provision enabling the Governor to make regulations, “not inconsistent with [the] Act, for or with respect to any matter that by [the] Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to the objects of this Act”. Section 39 enables the making of regulations which create offences punishable by a penalty not exceeding 250 penalty units.

82 Section 39A, which also appears in Part 3, provides:

“39A Civil liability under regulations

The regulations may provide that nothing in a specified provision or provisions of the regulations is to be construed:

(a) as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of the provision or provisions, or

(b) as conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings,

but the failure of the regulations to so provide in respect of a provision is not to be construed as conferring such a right of action or defence.”

This is a curious provision which, albeit negatively expressed, appears to confer an implied power to make a regulation which creates a duty enforceable by action at the suit of a person injured by its breach, an implication which gains some support from s 32(2): see Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 (at 461-462) per McHugh and Gummow JJ); referred to with approval in Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 (at [28]) per Gleeson CJ, Gummow and Hayne JJ.

83 Chapter 4 of the Regulation deals with “Work premises and working environment”. All the obligations in Ch 4, Pt 4.2 (“Work premises”), in which cl 34 and cl 36 appear, are imposed on the “controller of premises”. A “controller of premises” is defined in clause 33 as “a person who has control of premises used by people as a place of work, including: (a) a person who has only limited control of the premises, and (b) a person who has, under any contract or lease, an obligation to maintain or repair the premises.” It was common ground at trial that the appellant was the “controller” of the premises constituted by the Centre within the meaning of clause 33. It is also plain there was no dispute the Centre was “a place of work”, a term defined for the purposes of Ch 4 to mean “in relation to premises ... a place of work at those premises”: cl 33(1), Pt 4.1.

84 Clause 34 provides:

“34 Controller of premises to identify hazards

(1) A controller of premises must identify any foreseeable hazard arising from the premises that has the potential to harm the health or safety of any person accessing, using or egressing from the premises.

(2) Without limiting the generality of subclause (1), the controller must identify hazards arising from:

(a) the layout and condition of the premises, including the presence of a confined space, and

(b) the physical working environment, including the potential for:

(i) people slipping, tripping or falling, and

(ii) objects or structures falling on people, and

(c) the presence of material containing asbestos.

(3) A controller of premises must ensure that hazards are identified:

(a) during any design of the premises, and

(b) before the premises are provided for use as a place of work.

Maximum penalty: Level 4.”

85 Clause 36 provides:

“36 Controller of premises to eliminate or control risks

(1) A controller of premises must eliminate any risk, arising from the premises, to the health or safety of any person accessing, using or egressing from the premises.

(2) If it is not reasonably practicable to eliminate the risk, the controller of the premises must control the risk.

(3) A controller of premises must ensure that all measures (including procedures and equipment) that are adopted to eliminate or control risks to health or safety are properly used and maintained.

Maximum penalty: Level 4.”

86 Cl 5 of the Regulation sets out the meaning of “control” of risks. It is sufficient to note it specifies extensive obligations “in any case in which the elimination of the risk is not reasonably practicable” to take measures to “minimise the risk to the lowest level reasonably practicable”.

Statutory Causes of Action: Consideration

87 The question whether the respondent was entitled to succeed upon the two statutory causes of action she had pleaded proceeded at trial, as I have said, on the premise that cl 34 and cl 36 applied to a member of the public. On that basis, the primary judge found a private cause of action was created by cl 34 and cl 36, following his earlier decision in Irwin.

88 In Irwin the plaintiff was injured at her place of work during the course of her employment at an aged care facility. She was employed by the second defendant which provided catering services to the first defendant which owned and operated the facility. She sued the first defendant as the occupier of the facility, and the second defendant as her employer, alleging both had been guilty of negligence and breach of statutory duty. In the latter respect she pleaded a statutory cause of action said to arise from a breach of cl 39(a) and 39(e) of the Regulation. It is apparent from the judgment that no question was raised by the first defendant as to whether the Regulation could apply to it. The primary judge concluded (at [99]) that both defendants were controllers of the premises within the meaning of cl 33 of the Regulation and, accordingly, subject to the duties cl 39 imposed. The primary judge rejected (at [100]) the cl 39(a) case because that provision concerned access to premises whereas, when the accident took place, the plaintiff was “in” her workplace. He also rejected (at [101] – [102]) the cl 39(e) case because he accepted that that provision was directed to the design of floors and there was no evidence that either defendant was concerned with the design of the kitchen floor on which the plaintiff had slipped.

89 Having reached that conclusion, the primary judge then considered (at [104] – [108]) what was properly the antecedent question as to whether cl 39(e) conferred a statutory cause of action in civil proceedings. In considering that question, his Honour did not distinguish between the position of the defendants as employer and occupier respectively. He concluded that such a cause of action was, prima facie, available by applying (at [105] - [106]) that line of authority which holds that “[i]n the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognised by the general principles of the common law”: O’Connor v S P Bray Ltd [1937] HCA 18; (1937) 56 CLR 464 (at 477 – 478) per Dixon J. He determined (at [108]) that no contrary legislative intention could be discerned in cl 39 and, accordingly, if the circumstances had otherwise been made out, a civil action for damages for breach of the statutory duty cl 39(e) imposed was available.

90 As I have said, the primary judge applied his reasoning in Irwin to the present case. However, in my view before his Honour considered the question whether cl 34 and cl 36 created a private cause of action in favour of the respondent vis-à-vis the appellant, he ought first to have determined whether the protection those clauses afforded extended to persons in the relationship of occupier and member of the public.

91 It seems prima facie improbable that legislation whose object is to secure the health, safety and welfare of persons at work would extend to provide a private cause of action to members of the public. Whether or not the Regulation had that effect is, of course, a question to be determined by reference to principles of statutory interpretation (O’Connor (at 477 – 478) per Dixon J) taking into consideration context, purpose, policy, consistency and fairness (Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 at 397 per Dixon CJ; Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (at [78]) per McHugh, Gummow, Kirby and Hayne JJ). The context includes the existing state of the law and the mischief the Act was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 (at 408).

92 Nothing in the Second Reading Speech to the Bill which became the Act indicates the legislature intended to extend the protection of its provisions to members of the public entering shopping centres. Rather, as might be expected from the long title, its focus was identified as including “eliminating risk in the workplace, responsibility for workplace safety and injury management”: Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard), 26 May 2000, at 5937.

93 However some indications that the Act was intended to have a wider reach than the employment relationship can be discerned in s 8(2) and s 10. Even employees appear to have a statutory duty of care extending beyond their fellow employees: s 20. However none of these provisions confer a right of action or a defence in civil proceedings: s 32(1).

94 The position is different in relation to the Regulation, where the legislature has left open the question whether a breach of any duty it imposes is actionable: s 32(2), s 39A. While the definition of “place of work” is confined to “ a place of work at those premises” (emphasis added), that definition is clearly capable of extending to areas of a shopping centre to which members of the public have access and where people also work. In this case, for example, Mr Nagem was working in the immediate vicinity of the respondent’s fall. Further the legislature has imposed the obligations in Ch 4, Pt 4.2 on the “controller of premises used by people as a place of work”, in contradistinction, for example, with Ch 4, Pt 4.3, “Uses of places of work” which imposes all obligations on the “employer”. It might, accordingly, be accepted that taking those matters into account, on a literal reading cl 34 and cl 36 appear to afford protection to members of the public accessing places of work, as defined.

95 However there are substantial policy reasons which appear to militate against the conclusion that the legislature intended to extend the protection of the Act and Regulation to members of the public entering shopping centres. While “[i]t has long been an accepted policy of [the] law that employers might have to compensate their employees for injuries suffered in ... circumstances, irrespective of whether there was anything which the employer could have done to prevent it” (Smith v Northamptonshire County Council [2009] UKHL 27 (at [40]) per Baroness Hale of Richmond), recent legislative history in New South Wales evinces a determination to circumscribe the circumstances in which members of the public can recover damages for injuries alleged to be caused by negligence: see generally the Civil Liability Act and the Motor Accidents Compensation Act 1999.

96 Prima facie, the duties cl 34 and cl 36 impose are arguably absolute (see Smith v Cammell Laird & Co Ltd [1940] AC 242) and issues such as those involved in inquiries as to breach of duty at common law do not arise: see Galashiels Gas Co Ltd v O'Donnell or Millar [1949] AC 275. Thus, it may be arguable that in a case of cl 34 and cl 36 breach, and subject to what I say below about Booksan, the provisions of Part 1A of the Civil Liability Act which now govern the determination of common law liability for negligence do not apply.

97 If the primary judge was correct to apply O’Connor reasoning to conclude that either or both clauses conferred a private right of action on the respondent, then it would appear that members of the public in her position who are injured on premises which are both places where people work and places to which members of the public have access, may be in a substantially better position than members of the public whose causes of action for injuries arising out of allegedly defective premises would be governed by the Civil Liability Act.

98 The question of the extent to which the Act (and the Regulation) might confer a private cause of action on members of the public may raise the question whether there is such contrariety between the provisions of the Civil Liability Act and the Act and Regulation as to constitute an implied repeal of the latter or, at least, their exclusion from operation: see Goodwin v Phillips [1908] HCA 55; (1908) 7 CLR 1 (at 7) per Griffiths CJ; Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 (at [2]) per Gleeson CJ; (at [48]) per Gummow and Hayne JJ.

99 The alternative, and larger, proposition, is that the effect of the enactment of the Civil Liability Act is that all causes of action for breach of statutory duty pleaded since its enactment which are, in substance, a claim for damages for harm resulting from negligence, whether or not the injury involved arose in the course of the relationship of employer-employee, are governed by that Act. This appears to be the logical extension of the conclusion Ipp JA (Giles and Tobias JJA agreeing) reached, albeit in obiter, in Booksan (at [167]), a case in which the defendants were occupier and employer respectively, in determining that contributory negligence was available to a cause of action for breach of the Construction Safety Regulations 1950. As I have already said, Mr Leahy did not challenge the appellant’s submission that, if contributory negligence had been established, the effect of Booksan was that it was an available defence to the breach of statutory duty case. The larger implication to be drawn from that concession is that that case was, in substance, a claim for damages for harm resulting from negligence and, as such, in accordance with Booksan, had to be determined by reference to Pt 1A of the Civil Liability Act.

100 None of these issues were addressed in argument. As is apparent, in my view they raise significant and difficult issues which this Court ought not resolve in the absence of detailed submissions. In so saying I should not be understood as being critical of counsel, whose attention was only drawn to the Court’s concern in this respect in the course of argument and who were not invited to provide supplementary written submissions addressing the point.

101 It is unnecessary to reach a concluded view on this issue having regard to the fact that the appellant’s principal argument on the issue of negligence and contributory negligence, must fail. It is necessary only to flag the various points I have made above for further consideration when the occasion properly arises. The remarks I have made with respect to these points are intended only to draw attention to the issues and not to indicate any tentative, let alone final, view.

Damages: Consideration

102 The appellant’s substantive complaint on the issue of damages is that the expert reports the primary judge accepted did not satisfy the criteria for such reports Heydon JA identified in Makita. The respondent’s primary response is to complain that that argument was never raised at trial. This point is well made. Where evidence is admitted without objection then, in the absence of any other explanation for the tender and absence of objection, it may be inferred that both parties have waived any evidentiary objection: Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 (at 170); see also Jones v Sutherland Shire Council [1979] 2 NSWLR 206 (at 214 – 219) per Samuels JA.

103 However even where evidence is admitted without objection, it is necessary for the tribunal of fact to determine its weight. In the circumstance which the experience of this Court reveals often confronts trial judges, particularly in the District Court, where a bundle of medical reports expressing competing opinions are tendered without objection, with no oral evidence, any consideration of the weight to be attached to any particular report would include taking into account issues such as those Heydon JA identified in Makita concerning the proper contents of expert reports. It is unnecessary to explore these matters further in this case because, in my view, the respondent’s medical reports were not susceptible to the criticism the appellant now seeks to direct at them.

104 The appellant’s complaint was sweeping: none of the respondent’s expert reports the primary judge accepted satisfied Makita. In my view that criticism cannot be justified. It is sufficient to note first that two of the respondent’s reports, those from Dr Yousif and Dr Aung, were provided by general practitioners. It was to their practice that the respondent first sought medical relief after her fall. Dr Yousif’s report was a detailed chronology of her attendances at that practice, her complaints, clinical examinations of her, references to referrals by Dr Yousif of the respondent to other experts and summaries of their advices and finally an expression of his opinion as to the injuries she suffered as a result of the fall.

105 Dr Aung appears to have taken over Dr Yousif’s practice. He recorded a short history based on the clinical notes, reported on consultations he had with the respondent, summarised a report from Dr Robertson, who performed a carpal tunnel release operation on the respondent and quoted Dr Robertson’s findings on that procedure. Dr Aung did not purport to express his own opinion on any relationship between the respondent’s condition and her fall.

106 Dr Deveridge, a surgeon who was also a WorkCover and MAA trained assessor of permanent impairment, wrote a detailed report setting out the respondent’s history, his observations of his physical examination of her, a review of films and reports undertaken of the respondent’s wrists and cervical spine, and then proffered a detailed opinion. Dr Lee, an orthopaedic surgeon, provided a somewhat shorter report which nevertheless set out the circumstances of the respondent’s accident, his observations on examining her left wrist and back, his treatment of her and finally his opinion of her condition.

107 In my view, the respondent’s medical reports sufficiently detailed the factual basis for the opinions proffered.

108 The appellant’s second complaint is that the primary judge erred in finding that the respondent had suffered a non-economic loss in excess of the threshold prescribed by s 16 of the Civil Liability Act. This ground of appeal was founded essentially on the appellant’s Makita argument, and the proposition that the opinions the primary judge accepted as to the extent of the respondent’s injuries and ongoing disabilities were not made out. I have already rejected that submission and, accordingly, the respondent’s second complaint should fail for the same reasons.

109 However, in an apparently independent complaint, the appellant contended that on a proper analysis of the respondent’s medical reports the only finding open to his Honour was that the respondent suffered a soft tissue injury to one hand of reasonably short duration, with, it might be inferred, the consequence that his conclusion that the respondent’s non-economic loss satisfied the threshold of being of a severity of least 15% of a most extreme case prescribed by s 16 of the Civil Liability Act was not open. The written submissions did not analyse the reports to make good that proposition.

110 The approach taken when an appellate court is asked to review a primary judge’s conclusion as to the severity of a plaintiff’s non-economic loss by reference to a “most extreme case” was discussed in Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 (at [49]) as follows:

“49 The exercise in which the primary judge was involved in determining non-economic loss is neither scientific nor normative. While it is not wholly at large, it involves an exercise of discretion with which the Court will rarely intervene: Southgate v Waterford (1990) 21 NSWLR 427 at 440. Having regard to the nature of the exercise, a finding that a particular case is or is not ‘a most extreme case’ has been said to be not ‘readily ... susceptible of appellate review’ as ‘its resolution ... involve[s] questions of fact and degree, and matters of opinion, impression, speculation and estimation calling for the exercise of common sense and judgment’: Dell v Dalton (1991) 23 NSWLR 528 at 533 per Handley JA (with whom Kirby P and Priestley JA agreed); Rabay v Bristow [2005] NSWCA 199 at [62] – [67]. Unless it can be demonstrated that the trial judge has erred in the application of principle, in order to attract appellate review it will be necessary to show that the conclusion reached by the primary judge was manifestly erroneous: Ellis v Rantzos (t/as Rantzos Hairdressing) [2005] NSWCA 266 at [43] per Basten JA (with whom Handley and Santow JJA agreed).”

111 A like approach has been taken by the West Australian Court of Appeal: see Hammond Worthington v Da Silva [2006] WASCA 180; Den Hoedt v Barwick [2006] WASCA 196; (2006) 46 MVR 30; Insurance Commission of Western Australia v Weatherall [2007] WASCA 264.

112 The appellant has failed to identify any error of the nature of that identified in Pham which would attract appellate review.

113 In my view the appeal should be dismissed with costs.

114 YOUNG JA: I agree with McColl JA.

115 I should add that I entirely agree with her Honour’s view that we should not on the present appeal reach any conclusion on the question as to whether cll 34 and 36 of the Occupational Health & Safety Regulation 2001 creates a private right of action at all and in particular in a member of the public, that is, a person who is not performing work on premises.

116 The proper construction of s 39A of the Occupational Health and Safety Act 2000 referred to by her Honour in [82] should also await a proper vehicle for decision: I have deliberately not researched the point for that reason.

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LAST UPDATED:
16 June 2009