Carnemolla v Arcadia Funds Management Ltd

1. [1]

   BASTEN JA: On 29 September 2016 the appellant, Lisa Marie Carnemolla, slipped and fell, injuring her left knee, in a common area at Neeta City Shopping Centre, located at Smart Street, Fairfield, in western Sydney. The respondent, Arcadia Funds Management Ltd (“Arcadia”) was the manager and occupier of the premises. On 2 May 2017 the appellant, by her mother, who acted as her tutor, commenced proceedings in the District Court seeking damages, for negligence on the part of Arcadia. The matter was heard by Gibson DCJ on 10 and 11 March 2020, judgment being delivered on 9 April 2020. [1] The claim was dismissed; costs were reserved. Against the possibility that she had erred in finding there was no liability on the part of Arcadia, the trial judge contingently assessed damages.

2. [2]

   On 8 July 2020 the appellant commenced an appeal challenging the findings with respect to liability and the refusal of the judge to assess damages with respect to future loss for attendant care services.

3. [3]

   For the reasons set out below, the appeal with respect to liability must be dismissed. It will not be necessary to consider any question as to damages.

Factual issues

1. [4]

   On the morning of the incident, the appellant attended the Neeta City Shopping Centre in company with her mother and her brother. Once inside the Centre, they parted company. Shortly after midday, the appellant went to the women’s toilet on the perimeter of the food court. The toilet was located at the end of a short corridor which included a right-angle turn. After visiting the toilet, the appellant walked down the first arm of the corridor and slipped as she was making a turn to her right. Within a minute or two of the accident, the cleaner on duty in the area contacted his immediate supervisor, Mr Mudgil, who immediately attended the scene. He asked the woman if she was okay and recorded her response in the following terms:

2. [5]

   In the incident report prepared by Mr Mudgil, the time of the injury was noted as 12:22pm. Mr Mudgil attended at 12:23. After noting the appellant’s statement to him, Mr Mudgil continued:

3. [6]

   An ambulance was contacted at 12:26 but did not arrive until 14:30. The appellant was taken to Liverpool Hospital and underwent an operation for a displaced fracture of her left patella.

4. [7]

   There were references in other materials to the appellant having slipped on water. These included the hospital discharge notes (“mechanical fall – slipped on water”); a report of her orthopaedic surgeon, Dr Peter Giblin [2] (“stepped onto wet ceramic tiles”), and a report by Dr Harvey (“slipped on some water on the floor”). It seems likely that the histories recorded by the medical practitioners were either derived from the hospital discharge notes or, like the hospital notes, from histories given by the appellant or her mother.

Proceedings at trial

1. [8]

   It was an essential element of the appellant’s case that the surface where she slipped was wet. It was not in dispute that the surface of the corridor where she slipped was terrazzo, nor was it in dispute that, when wet, terrazzo is slippery. Arcadia disputed her claim that she slipped in water, and, even if that were the case, relied upon evidence of a cleaning regime carried out by Asset Cleaning Services Pty Ltd under a building services agreement with Arcadia. The agreement specified:

2. [9]

   The evidence demonstrated that a cleaner had carried out an inspection at 12:10, that is, not more than 12 minutes before the appellant fell.

3. [10]

   Prior to the trial, Arcadia served on the plaintiff a notice to admit facts which included the following statements, each of which was admitted:

4. [11]

   The incident report quoted above was only admitted late on the first day of the trial, after all the oral evidence had been taken. [4] Although the report was double-edged for the appellant, absent the report there was no direct evidence that the appellant had slipped on water. Her statement to Mr Mudgil was not repeated in her evidence at the trial. In describing the incident, she said that she came out of the toilet and then, “I felt something under my feet and I fell.” [5] She was asked to expand on that statement: [6]

5. [12]

   The appellant was taken back to the point at which she had been approached by staff of the Centre and was asked to explain what happened. She did not repeat the statement which appeared in the incident report, namely that she had slipped on water.

6. [13]

   The fact that the appellant sued with the assistance of a tutor and was, on occasion, inarticulate in giving her evidence, indicated a level of intellectual disability or psychological impairment. The evidence before the Court as to the nature of her impairment was limited. However, an Australian Government Employment Services Assessment Report dated 28 May 2012 noted that her diagnosed conditions had a functional impact described as “reduced endurance and social interaction difficulties due to persistent negative symptoms of psychosis with acute exacerbations …, reduced reliability due to fluctuating anxiety levels with panic attacks, concentration/cognitive difficulties and [drowsiness] due to medication side effects.” [7] With respect to her educational history, the report stated: [8]

7. [14]

   Her mother also gave evidence at the trial. Whilst she was not present when the accident occurred, she was notified of her daughter’s fall by the appellant’s brother and came to the corridor outside the toilets where her daughter was sitting against a wall. She said there were three security guards present. [9] The following exchange took place: [10]

8. [15]

   Her mother was also asked whether she had a conversation with a security guard: she agreed she had and stated, “He'd said that she had a fall.” [11]

9. [16]

   The final aspect of the evidence relevant to liability was a report prepared by Mr Ian Burn, an engineer with H L Burn & Associates, as to the condition of the surface of the corridor where the fall occurred. Mr Burn noted that the surface comprised 400mm square terrazzo floor tiles. He continued: [12]

10. [17]

    Mr Burn gave evidence as to the use of terrazzo as a pedestrian surface in large shopping malls. First, he agreed that it was “the predominant surface”, [14] and that it was “used almost universally throughout shopping malls in this State and country”. [15] His evidence continued: [16]

11. [18]

    Mr Burn later agreed that it was an appropriate surface if it can be kept dry. [17]

Primary judgment

1. [19]

   The primary judge was acutely aware of the difficulty faced by the plaintiff in establishing the cause of her fall, in circumstances where she was alone at the time and had difficulty describing the incident. The judge accepted that she had told the cleaning supervisor, Mr Mudgil, that she had slipped on water, and had probably repeated such statements to hospital staff and possibly to the doctors in giving a history of her circumstances. Nevertheless, the judge was also concerned that she did not refer to slipping on water at any stage in her oral evidence. The judge described the statement that the appellant “felt something under my feet” as “the closest [she] came to describing how it came about that she fell.” [18] Before analysing her evidence, the judge stated:

2. [20]

   The primary judge also stated:

3. [21]

   Counsel for the appellant criticised this aspect of the judgment on the basis that the judge did not explain how she had taken into account the limits on the plaintiff’s ability to give evidence, or how she interpreted answers generously. Those criticisms lacked substance. Reasonably understood, the passages demonstrated a willingness to be satisfied of a factual element based on material which might not otherwise establish liability on the balance of probabilities. In any event, for reasons to be noted, the case did not ultimately turn on whether or not there was water on the floor on which the appellant slipped.

4. [22]

   Although the judgment dealt with the issues and evidence discursively, there were two critical steps in the judge’s reasoning. Dealing with the evidence as to the surface of the corridor the judge stated, by reference to the only evidence at trial:

5. [23]

   As senior counsel for the appellant acknowledged, the duty imposed on an occupier of the premises is not to ensure that the floor is dry at all times, but to take reasonable steps in fulfilment of its duty to patrons to ensure that the floor was dry and not slippery. That involved having a system for identifying and cleaning up spills. No criticism was made of the system adopted by Arcadia; rather, it was admitted to be “adequate” which should, in the circumstances be understood as admitting the adoption of precautions which would have been taken by a reasonable person in Arcadia’s position, in accordance with s 5B(1)(c) of the Civil Liability Act 2002 (NSW).

6. [24]

   If there had been water on the floor, that would have demonstrated that the system had failed; it did not demonstrate that the system itself was not appropriate and adequate as a means of fulfilling the duty of care. No expert said that it was inadequate; indeed, the only expert called, Mr Burn, accepted that it was adequate.

7. [25]

   There was a suggestion in argument on the appeal that “implicit in” Mr Burn’s evidence was the inference that some other floor surface should be adopted if in fact it could not be kept dry by use of reasonable precautions. However, given the universal use of terrazzo flooring in shopping centres in New South Wales, as he accepted, a finding that such flooring should be replaced would have required the judge to consider, pursuant to s 5C(a), “the burden of taking precautions to avoid similar risks of harm for which the person may be responsible”. In other words, careful consideration would need to have been given to the cost of replacing the terrazzo floors throughout the shopping centre, as to which there was no evidence.

8. [26]

   In substance, the appellant’s challenge to the finding with respect to how she had slipped involved three propositions, namely (i) it was common ground that the terrazzo floor was slippery when wet; (ii) there were several potential sources of water on the floor, including splashes from the nearby toilets and visitors bringing water from the outside where it was raining; and (iii) the appellant’s contemporaneous belief that she had slipped on water.

9. [27]

   The trial judge was affirmatively satisfied that there was no water on the floor where the appellant fell. [19] In the alternative, the judge said she was not satisfied that the appellant had slipped on water, being a matter on which the appellant bore the burden of proof. [20] It is sufficient to consider the latter conclusion.

10. [28]

    If it were necessary to reach a finding as to that matter, I would not be satisfied that the judge’s alternative conclusion was erroneous. First, there was the evidence of a contemporaneous inspection of the area by Mr Mudgil, who found no evidence of water or any other liquid on the floor. Secondly, it was unclear how the appellant fell. Although she said she fell on her backside, she also described falling on her left knee, which caused the fracture to the kneecap. It is by no means clear that the mechanism of the fall was consistent with a slip. Thirdly, there was no evidence of any previous slip and fall in the area, and evidence that there were no records of that occurring.

11. [29]

    One consequence of the tender of the incident report was that the appellant was faced with evidence that Mr Mudgil had, within perhaps two or three minutes of the incident, inspected the area and found that it was dry and clean. It was submitted that the appellant may have been sitting on the water. However, that proposition was entirely speculative. Further, it did not adequately account for the fact that the appellant was helped into a position where she was sitting against the wall, after she fell. In short, it was not established that she was sitting over the spot where she had slipped.

Conclusions

1. [30]

   For these reasons, the judge was entitled to reject the claim that there was water on the floor. She was also entitled to reject the claim, as she did, on the basis that if there were water on the floor, it was not a result of a breach of duty on the part of Arcadia.

2. [31]

   The appeal should be dismissed with costs.

3. [32]

   LEEMING JA: I agree with Basten JA. I would add the following by way of a further reason why the appeal must be dismissed.

4. [33]

   The primary judge made alternative findings of fact on the principal issue of fact. First, her Honour was affirmatively satisfied that there was no water on the floor of the corridor where the appellant fell. There is some ambiguity in expression at [71] where her Honour stated “I am not satisfied that there was in fact water on the floor”. However, the reasons are to be read as a whole, and when [71] is read together with the reference at [76] to a “positive finding” and the statement at [81] that “if my finding that there was no water is wrong”, it is clear that her Honour was positively satisfied that there was no water. Secondly, her Honour found that the appellant had not discharged the burden of proof that there was water on the floor which caused her slip and fall.

5. [34]

   I am unpersuaded that there is any appellable error in the positive finding that there was no water. In many respects the best evidence of the state of the floor at around 12.20pm that day is what was noted by Mr Mudgil, who recorded that the appellant had said she had slipped on water, but who also recorded that the floor was dry. The form and detail of the note suggests it was made on the spot, before the ambulance arrived, and no submission to the contrary was advanced. The note may have been incorrect, because of human error, but in circumstances where Mr Mudgil must have been thinking of water, not merely because of the way in which the form was generated but also because that was what he had been told by the appellant, this seems unlikely. In circumstances where there was no testimonial evidence that water was present, it was amply open to the primary judge to find that there was no water, consistently with the best contemporaneous evidence on that issue.

6. [35]

   McCALLUM JA: I agree with Basten JA and with the additional remarks of Leeming JA.