Argo Managing Agency Ltd v Al Kammessy

1. [1]

   McCOLL JA: I agree with Sackville AJA’s reasons and the orders his Honour proposes. In so doing, I add that I have also closely studied the CCTV footage and agree with Sackville AJA’s observations as to what it does, and does not, depict.

2. [2]

   WHITE JA: The facts giving rise to this appeal are set out in the judgment of Sackville AJA that I have had the advantage of reading in draft. The appeal raises three factual issues that are in a short compass. The first issue is whether it is more probable than not that the water upon which the respondent slipped was on the terrazzo floor of the passageway when Mr Nguyen passed the area on which the respondent fell. The second issue is how much water was on the floor. This is relevant to the third issue. The third issue is whether Mr Nguyen ought to have seen the water and cleaned it up.

3. [3]

   Sackville AJA has concluded that on the balance of probabilities the water on which the respondent slipped was present when Mr Nguyen passed that area. I agree.

4. [4]

   Sackville AJA has referred to the difficulties in relying on CCTV footage. The warnings to which Sackville AJA refers (at [54]-[55]) are apt. On the other hand, for all its limitations, CCTV footage may be the best evidence of physical events, being unimpaired by human frailties of imperfect recollection, suggestion, reconstruction, or self-justification. In this case the issues to which the CCTV footage relate are the presence of water on the terrazzo floor in the vicinity in which the respondent slipped, and Mr Nguyen’s movements as he walked past that area. The CCTV footage is too indistinct to detect the presence or absence of water on the floor. It does show (from behind) Mr Nguyen’s bodily movements.

5. [5]

   Subject to two possible exceptions, it could be concluded that the passage of people in the arcade across and in the vicinity of the area on which the respondent slipped indicated that there was no water on the floor. But the evidence established that there was. The two possible exceptions are the footage showing a woman lifting the hem of her garment and moving to her right and looking behind her, and a contemporaneous footage of a woman coming from the opposite direction pushing a stroller moving to her right at the same location, such that they both may have observed water on the floor that they avoided. When the footage is enlarged and viewed frame by frame it does appear that the woman in the long garment appears to step to her right, hitch up the left side of her dress and look back over her left shoulder and the woman pushing the pram does appear to deviate to her right (10:44:18). This incident took place 24 seconds after Mr Nguyen disappears from view on the CCTV footage (10:43.54). A close scrutiny of the CCTV footage does not show any possible source of a deposit of the water on the floor either during the period of 24 seconds after Mr Nguyen disappeared from view or earlier.

6. [6]

   A possible source of water being deposited was from Mr Nguyen’s own trolley. But he denied that possibility and that case was not pressed.

7. [7]

   I agree that the limitations of the CCTV footage are such that no conclusion can be drawn from it as to the time at which the water that was admittedly on the floor was deposited. For the reasons explained by Sackville AJA and consistently with the reasons of Hayne J in Kocis v S E Dickens Pty Ltd t/as Coles New World Supermarket (1983) 3 VR 408 at 432 and Strong v Woolworths Limited (2012) 246 CLR 182; [2012] HCA 5, I conclude that on the balance of probabilities the water on which the respondent slipped had been deposited on the terrazzo floor of the arcade when Mr Nguyen went past it less than two minutes before the fall.

8. [8]

   The next question is how much water was on the floor where the respondent slipped? On the basis of a photograph the primary judge found that the spillage extended “a metre onto the floor in one direction at least”. The photograph did not support that finding and the respondent did not seek to support the finding on the basis of that photograph.

9. [9]

   The respondent gave evidence that as he was leaving Woolworths in the company of his daughter he saw a spot of water on the ground which he avoided and told his daughter to walk around, which they did. He then walked on and was speaking to his daughter. He turned to look at her and then slipped. He said that all his clothes were wet, his shorts, his T-shirt and his legs and even his hands, because when he fell “all my body hit the floor and my hands hit the floor as well”. He said that the water was clear. He had not seen it before he stepped on it. He did not say, and there is no basis for finding, that the water on which he slipped was the spot of water which he had earlier avoided. His evidence was to the contrary.

10. [10]

    In cross-examination the respondent was asked, “You didn't make any observations as to how large it was before you slipped, did you?”. The respondent answered “No.” That evidence goes nowhere. The respondent’s evidence was that he had not seen the water on which he slipped before his fall. It necessarily followed that he had not observed how large was the area of water on which he slipped before he fell. He gave the following evidence in cross-examination:

11. [11]

    The respondent’s evidence was not otherwise challenged. The primary judge made no finding about this evidence, but his finding that the spillage extended “a metre onto the floor in one direction at least” was consistent with his acceptance of the respondent’s evidence. No submission was made to the primary judge that the respondent’s evidence should not be accepted. On appeal the appellant did not submit that the respondent’s evidence could not or should not be accepted.

12. [12]

    No evidence was called by the appellant to contradict the respondent’s evidence as to the extent of the water on the floor on which he slipped. It is correct, as Sackville AJA says (at [119]) that the CCTV footage does not depict a wet patch, much less the extent of any wet patch. I agree that the photographs cannot be used to infer that the fluid on which the respondent slipped was “more than a [casual] amount from a dropped container” (Sackville AJA at [119]). However, the respondent’s uncontradicted evidence indicated more than a small amount of water was spilt.

13. [13]

    Three people attended the scene after the fall who could have given evidence of the extent of the water on the floor. One was a photographer employed by the security company for Westfield. He was identified as “Michael C”. He was available to be called by either party. No inference arises from the failure of either the respondent or the appellant to call him.

14. [14]

    The other two people who could have given evidence as to the amount of water on the floor were the cleaner who came after the spill (Mr Aphidech Moelkhunthod and his supervisor Ms Tuncharnok Chankhuntod). Sackville AJA says it is not clear why Mr Moelkhunthod was recorded as the cleaner since he appears to have played no part in the relevant events. Mr Nguyen described Mr Moelkhunthod as being much taller than him. The CCTV footage shows a man taller than Mr Nguyen cleaning up after the fall (10:52:24-10:54:14). This explains why Mr Moelkhunthod and Ms Chankhuntod signed the report recording that the respondent slipped on water on the floor. Neither Mr Moelkhunthod nor Ms Chankhuntod was called to give evidence. The inference is available that their evidence would not have assisted the appellant in relation to the extent of the water on the floor at the time of the respondent’s fall. A Jones v Dunkel submission was made at trial.

15. [15]

    Before reaching a conclusion as to whether Mr Nguyen was or was not negligent, it is necessary to make a finding as to the quantity of the water on the floor. It is true that the primary judge did not refer to the plaintiff’s evidence quoted at 9 above and quoted by Sackville AJA at [122]. As I have said, there is no reason not to accept that evidence. The fact that the respondent observed “a spot of water” before the accident, being a spot of water that he avoided, says nothing about the quantity of the water on which he slipped. The fact that he did not see water immediately before he slipped and suffered his injuries says nothing about the extent of the water on which he slipped.

16. [16]

    The appellant relied upon an expert report tendered by the plaintiff by consultant architect, Dr John Cooke, dated 12 July 2016. Dr Cooke said:

17. [17]

    Whether this report excuses a cleaner from failing to observe water on the floor is a different question from whether an ordinary pedestrian should be expected to see water on the floor. As the water was “effectively invisible” to the respondent, no conclusion could be drawn about the extent of the water on the floor from the respondent’s failure to see it.

18. [18]

    I conclude that the quantity of water on the floor was sufficient to mean that all of the respondent’s clothes were wet, as were his legs and hands. It appears from the CCTV footage that the respondent was wearing long shorts that came to or just below his knees (10:44:25:474). The primary judge understood from the respondent’s evidence that what he was describing was a puddle of water on the floor. Counsel for the appellant at trial did not cavil with that description. In my view the evidence established that the water did extend over more than a very small area. If it did not, the appellant could have been expected to call evidence from Mr Moelkhunthod and Ms Chankhuntod.

19. [19]

    It appears from the CCTV footage that Mr Nguyen passed just to the right of the area on which the respondent slipped.

20. [20]

    The third question is whether Mr Nguyen should have seen the puddle and cleaned it up.

21. [21]

    Mr Nguyen’s approach to his cleaning task was clearly not as diligent as that of Pacharee Chaemkhuthod. I agree with the primary judge’s assessment of the CCTV footage that as he approached the area where the plaintiff was later to fall, he moved to the right and did not look back to the left to the area where the plaintiff was to fall. He had his head down and his attention was attracted by something in a shop window to the right. He parked his trolley and came back to look at what was in the window.

22. [22]

    Whilst the primary judge found that Mr Nguyen appeared to be an “impressive young man” who was doing his best to give his evidence truthfully, the primary judge did not accept his evidence. The effect of Mr Nguyen’s evidence was that there was nothing unusual for him to have seen. But once it is accepted that on the balance of probabilities the water on which the respondent slipped was present when Mr Nguyen passed that area, then Mr Nguyen’s evidence that there was nothing unusual to be seen must be rejected.

23. [23]

    Unsurprisingly, Mr Nguyen had no recollection of the actual events. He said:

24. [24]

    Although the CCTV footage showed Mr Nguyen putting out yellow danger signs after the respondent’s fall (10:46:30), he had no recollection of having done so. His evidence was confined to his practice and to his interpretation of the CCTV footage.

25. [25]

    Mr Nguyen gave the following evidence:

26. [26]

    Mr Nguyen’s lack of recollection of the actual events of the day is illustrated by his answer to the following question:

27. [27]

    The CCTV footage shows Mr Nguyen was not the cleaner who cleaned up after the respondent’s fall (10:52:29-10:54:14). That explains why the “supervisor/cleaner” report was signed by Mr Moelkhunthod.

28. [28]

    Mr Nguyen made this point in his examination-in-chief as follows:

29. [29]

    Notwithstanding his evidence quoted at [26] above, Mr Nguyen acknowledged that he did not remember having cleaned up the spill.

30. [30]

    In Mr Nguyen’s evidence-in-chief, the relevant parts of which are quoted by Sackville AJA at [70], Mr Nguyen said that he often looked to the front, meaning straight, left and right, and looked down on his walking steps, if there were anything unusual. In cross-examination he did not dispute that the CCTV footage did not show his turning his head to the left or the right, but said that he did not need to turn his head to do so, but could look out of the corner of his eye.

31. [31]

    On being taken to the CCTV footage he gave the following evidence:

32. [32]

    That evidence does not establish that Mr Nguyen was looking at the area on which there was water on which the respondent slipped. He could not know if there were something unusual unless he looked. Mr Nguyen’s evidence was that he did not need to look down and pay attention unless there was something unusual to be observed. But he would not know if there were something unusual, namely water that would not readily catch the eye, unless he did look down and pay attention.

33. [33]

    The report of Dr Cooke did not address the level of attention that would be expected of a cleaner. Paragraphs 41 and 42 of Dr Cooke’s report (quoted above at [16]) have to be read together. The appellant accepted that one of the objectives of having cleaning staff was so that they would identify and deal with slip hazards. The level of attention required of a cleaner in the position of Mr Nguyen was different from that of a member of the public using the concourse.

34. [34]

    The fact that the area was heavily trafficked was a reason for a high level of attention.

35. [35]

    Sackville AJA suggests (at [128]) that the finding of negligence might be sustained if the respondent had adduced evidence suggesting that a reasonably diligent cleaner should have detected the water and removed it. It appears that the respondent sought to tender a report of a Dr Watson that Mr Nguyen’s behaviour did not meet industry standards. Although his Honour’s judgment on the tender of the report was not before this Court, it appears that his Honour rejected the report. In the course of oral submissions the primary judge said:

36. [36]

    The respondent did not include in its notice of contention an objection to the apparent rejection of Dr Watson’s report. Nonetheless, as Sackville AJA says (at [104]), if the primary judge’s finding were overturned, there could be a real question as to whether a new trial should be ordered. If the primary judge’s orders were overturned I would invite the parties to make submissions on that question.

37. [37]

    In my view it is not necessary to do so because the primary judge’s finding of negligence should be upheld. Once it is accepted that there was the quantity of water on the floor as described by the respondent on which he slipped, expert evidence is not needed to establish that Mr Nguyen, if acting reasonably, should have seen the water and dealt with it. His evidence was that his job was to keep an eye out for anything unusual. This was squarely within the scope of his duty (Schultz v McCormack [2015] NSWCA 330 at [71]). Reasonable care on the part of Mr Nguyen required him to look around on the floor for slipping hazards. The evidence of Pacharee Chaemkhuthod established that water was one such slip hazard. She said that when she made her passage she was checking if there were any garbage on the floor and any spills of water on the floor. The failure of Mr Nguyen to do so was a breach of his duty.

38. [38]

    For these reasons I would dismiss the appeal with costs.

39. [39]

    SACKVILLE AJA: This is an appeal from a decision of the District Court (Maiden DCJ) giving judgment for the plaintiff (the present respondent) against the second defendant (now in liquidation) in the sum of $476,736.42. [1] The second defendant went into liquidation in the course of the District Court proceedings and by consent the insurer was substituted as the second defendant. The insurer is the appellant.

Background

1. [40]

   On 28 December 2013, the respondent was walking with his young daughter in Westfield Shopping Centre, Liverpool (the Centre). He was injured when he slipped and fell on a wet patch in a public area of the Centre. The accident occurred at 10.44.29 am on 28 December 2013 and was captured on CCTV footage. Much of the argument at the trial and in this Court related to the inferences that could be drawn from the footage.

2. [41]

   The respondent commenced the proceedings in the District Court on 28 July 2015 claiming personal injury damages. He joined two defendants. The first defendant was Scentre Shopping Centre Management Ltd (Scentre), the occupier of the Centre. The proceedings against Scentre were resolved by consent orders made on 4 August 2016.

3. [42]

   The second defendant was originally AAA Cleaning and Security Maintenance Pty Ltd. However, by notice of motion filed on 21 February 2017, the respondent sought leave to file an amended statement of claim which substituted Atlantic Cleaning and Security Pty Ltd (Atlantic) as the second defendant. Letherbarrow DCJ granted leave file the amended statement of claim, which was filed on 10 March 2017. [2] Atlantic had entered into a written agreement with Scentre [3] dated 15 July 2013 to provide cleaning and related services at the Centre. As noted above, the appellant was later substituted for Atlantic as the second defendant.

4. [43]

   The CCTV footage showed that at about 10.43 am on 28 December 2013 an employee of Atlantic, Mr Nguyen, passed near the point where the respondent slipped (accident site). Mr Nguyen was employed as a cleaner and his duties included detecting water or other fluids on the floor and removing the fluid. The primary Judge found that Mr Nguyen had engaged in a “casual act of negligence” in failing to detect the wet patch at the accident site. His Honour also found that the wet patch caused the respondent to slip and thus the cleaner’s negligence, for which Atlantic was responsible, caused the respondent’s injuries.

5. [44]

   The only issue on the appeal is whether the primary Judge erred in finding that Mr Nguyen, had he acted with reasonable care, should have detected the wet patch and cleaned the area before the respondent reached it. Mr Sexton SC, who appeared with Mr Blackman for the appellant, identified two sub-questions requiring determination on the appeal:

6. [45]

   The respondent filed a notice of contention in the following terms:

Scope of the dispute

1. [46]

   It is important to appreciate the confined nature of the dispute. Atlantic’s defence to the respondent’s statement of claim admitted that, through its employees, servants and/or agents, it owed patrons entering upon the premises (the Centre) a duty of care. The appellant is bound by that admission.

2. [47]

   In the course of oral argument in this Court, Mr Sexton took the matter a little further. He accepted that if Mr Nguyen, in the exercise of reasonable care, should have detected the wet patch in the area where the respondent slipped, the appeal would have to be dismissed. Mr Sexton also accepted that it was part of Mr Nguyen’s job to identify slip hazards and attend to them, although Mr Sexton emphasised that the duty was not “perfection”, but only to take reasonable care to prevent the materialisation of the risk of a patron slipping and falling. Mr Sexton also indicated that causation was not in issue. It follows that if this Court upholds the primary Judge’s finding that Mr Nguyen committed a “casual act of negligence”, and that finding means that Mr Nguyen failed to exercise reasonable care to prevent the risk of injury materialising, the appeal must fail.

3. [48]

   Without in any way questioning the correctness of the concession made on the appellant’s behalf, there is an irony in its position. Atlantic had in place a system for cleaning that assigned five or six persons to the food court, a large area on the floor that includes the corridor where the respondent fell. Atlantic employed the so-called the WAND system which, according to the primary Judge, uses GPS technology to track the movements of a person linked to the system. The WAND system enabled supervisors to keep track of the precise location of cleaners in the Centre and allowed the supervisor to be called at any time. The primary Judge found that Atlantic had “an adequate system for cleaning”.

4. [49]

   The irony is not merely that Atlantic had an adequate system in place – even the best system can break down through lack of due care by individual employees. The irony results from the undisputed fact that at 10.35, only nine minutes before the accident, another cleaner, Ms Chaemkhuthod, conducted an inspection of the area near the accident site and detected no wet patch. There is now no dispute between the parties that Ms Chaemkhuthod carried out her duties appropriately and that no wet patch was present at the time of her inspection.

5. [50]

   If Mr Nguyen had not traversed the relevant area about eight minutes after Ms Chaemkhuthod had done so, it is extremely unlikely that the respondent would have been able to make out a case of negligence against Atlantic. The contract between Westfield and Atlantic required the cleaner to inspect “common malls” every twenty minutes. [4] While the contractual terms between Westfield and Atlantic cannot of themselves define the scope of Atlantic’s duties to patrons, the finding that Atlantic had an adequate system in place is likely to have defeated any claim by the respondent. A gap of nine minutes between inspections of the corridor (the time between Ms Chaemkhuthod’s inspection and the accident) is not likely to have been sufficient to justify a finding of negligence against Atlantic.

6. [51]

   It is therefore the fortuitous circumstance that Mr Nguyen happened to re-enter the corridor and pass near the accident site at about 10.43 that provided a basis for the respondent’s claim. Such are the vagaries of the law governing claims for personal injury damages based on negligence.

CCTV footage

1. [52]

   The CCTV footage in this case has been very significant in that it has clarified a number of matters. For example, it has allowed a precise timeline to be drawn covering the relevant events. The footage records the actions of the two cleaners as they traversed the corridor and captures the moment when the respondent slipped and fell. That moment (10.44.29) is shown on a frame taken from the CCTV footage, which is reproduced below:

2. [53]

   As can also be seen, the CCTV footage was taken from a fixed camera in an elevated position facing the divided corridor. A map of the Centre, which was in evidence, demonstrates that the corridor leads to a Woolworths store, which is located at the top of the frame. Mr Nguyen’s responsibilities included cleaning the “loop” from one end of the corridor to the other. The respondent fell on the wet patch as he was walking, while holding two shopping bags, towards the camera. As can be seen, he fell towards the centre of the right hand aisle (viewed from the camera).

3. [54]

   While the CCTV footage is undoubtedly useful, it is important to bear in mind the limitations of such evidence. Courts have repeatedly warned about the dangers of relying on photographic evidence, particularly in relation to perspective and distance. [5] The warnings include the “sage advice” of Lord Reid that lawyers are not experts in reading or construing photographs and thus should generally not adopt their own interpretation of the photographic evidence on contested issues. [6]

4. [55]

   Similar warnings have been given in relation to CCTV footage. In QBE v Orcher, for example, Tobias AJA said that the weight to be attached to CCTV footage: [7]

5. [56]

   The warnings are apposite to the present case. There was no expert evidence to assist in interpreting the CCTV footage. Nor was there evidence explaining the dimensions of the area near where the respondent fell or of the distance between the accident site and the shops or structures in the vicinity. Because of the parallax effect, [9] it is very difficult for the uninstructed viewer to obtain a clear understanding of the precise location of the fall. Among other things, this makes it difficult to determine how close the cleaners, particularly Mr Nguyen, came to the accident site. It also makes it difficult to determine how many patrons walked over or very close to the accident site during the period between 10.35 and 10.44.29, although it would seem that many did.

6. [57]

   The CCTV footage was shown in court and the key events were displayed frame by frame. Despite viewing the footage multiple times in court and in chambers it must be said, as the primary Judge remarked, that some of the images are not particularly clear. The lack of clarity is in part due to the fact that the area where the respondent slipped is located a considerable distance from the camera. In addition, although the quality varies, the images in some of the footage seem to lack precise definition.

7. [58]

   The respondent’s written submissions suggest that insofar as the primary Judge drew inferences from the CCTV footage, his Honour’s findings should not be overturned unless they are “glaringly improbable”. [10] This, however, is not the standard for appellate intervention. As was pointed out in QBE v Orcher, [11] the appellate court is in as a good a position as the trial judge to decide on the proper inferences to be drawn from CCTV footage. The appellate court gives respect and weight to the conclusions of the trial judge, but will give effect to its own views if it concludes that the trial judge was in error. If the trial Judge’s analysis is flawed, that will diminish the weight to be given to his or her conclusions.

Background

1. [59]

   It is now common ground that at about 10.35, when Ms Chaemkhuthod conducted her inspection of the area (near the accident site), there was no wet patch in the vicinity. Ms Chaemkhuthod performed a loop around the top part of the corridor. She went past the accident site twice, the second time at 10.35.43 on the left hand side of the corridor (facing the camera). Since it is also not in dispute that the respondent slipped on a wet patch at 10.44.29, water must have found its way onto the accident site during the period of approximately nine minutes between 10.35.43 and 10.44.29.

2. [60]

   The CCTV footage in evidence covers the period from 10.04.30 to 11.05.30. The parties agree that there is nothing in the footage that reveals the source of the wet patch at the accident site. The primary Judge speculated that since there was no evidence that the fluid at the accident site had chemical composition different from water, the source “may have” been pot plants in the vicinity or a large container of fluid opened by someone sitting on a seat in the vicinity. But no finding to that effect was or could have been made.

3. [61]

   Several documents, other than CCTV footage or photographs, were referred to in argument on the appeal. Although the documents were in evidence, they were not specifically referred to by the primary Judge. It is convenient to refer to them here.

4. [62]

   The written agreement between Westfield and Atlantic required Atlantic to supply the services described in the “Specification” in accordance with the highest industry standards. The detailed Specification, among many other matters, dealt with “rotations”. This term is defined to mean “the maximum time between inspections of every square metre of area during centre trading hours”. In the case of “Common Malls and Entrance areas”, the rotation was to be every 20 minutes.

5. [63]

   Following the respondent’s fall an “IMS Incident Report” was prepared by a person identified as “Jana C”. The IMS Incident Report included an “Incident Statement” which identified “Jana C” as Ms Celic, a security guard employed by a contractor to Westfield.

6. [64]

   The “Incident Details” section of the IMS Incident Report recorded that Ms Celic had been contacted at 10.50 am and called an ambulance at 10.55 am. The “Incident Description” was as follows:

7. [65]

   Ms Celic prepared and signed the “Incident Statement”. Ms Celic stated that she attended and asked the respondent what happened. He replied that he “was walking down and slipped on water here”. The Incident Statement referred to a “Michael C” who apparently attended the accident site and took photographs of the area. “Michael C” is identified as Mr Michael Carvajal.

8. [66]

   A document headed “Supervisor/Cleaner’s Report” was dated 29 December 2013 (the day after the accident). The document was signed by Tuncharnok Chankhuntod as “Supervisor” and Aphidech Moelkhunthod as “Cleaner”. Until the position was clarified in the course of oral argument in this Court the parties seem to have assumed that the Supervisor was Ms Chaemkhuthod, the female cleaner. The evidence demonstrates that the Supervisor was a different person (who happens to have been Ms Chaemkhuthod’s aunt). It is not clear why Mr Moelkhunthod was recorded as the “Cleaner” since he appears to have played no part in the relevant events. Neither the “Supervisor” nor the “Cleaner” gave evidence, although Mr Sexton indicated that the Supervisor was available to do so.

9. [67]

   The Supervisor/Cleaner’s Report recorded the site of the accident as “in front of Williams Shoes L 2” and stated that the Cleaner had not seen the accident. The Report contained the following printed questions and handwritten answers:

Mr Nguyen’s evidence

1. [68]

   Since the primary Judge found that Mr Nguyen committed a “casual act of negligence” that caused the respondent’s injury, his evidence is of importance. Mr Nguyen gave evidence by video-link through an interpreter. He gave evidence from Vietnam where he lived at the date of the trial.

2. [69]

   Despite the finding of negligence, the primary Judge cast no doubt on Mr Nguyen’s veracity. Indeed, his Honour said that Mr Nguyen appeared to be an “impressive young man” who was doing his best to give his evidence truthfully.

3. [70]

   In his examination in chief Mr Nguyen said that his tasks included the “loop” around the corridor leading to the Woolworths store. When shown the CCTV footage leading up to 10.43.10 he explained that he was moving forward to inspect all around the area. The following exchange then took place:

4. [71]

   Mr Nguyen’s statement that immediately after 10.43.10 he was “looking forward to inspect the area” raises a question as to the precise area to which he referred. As has been noted, it is difficult from the CCTV footage to identify the precise location of the accident site relative to the movement of people, including Mr Nguyen. As best one can discern, Mr Nguyen appears to be very close to the accident site where, in his words, he “was moving forward to inspect all around the area”.

5. [72]

   In his cross-examination, Mr Nguyen said that he had no independent recollection about the incident, including about the role he played in cleaning the site afterwards. However, he was taken to the CCTV footage and asked questions about his conduct. It was put to Mr Nguyen that he had failed to look to his left or right as he approached the accident site:

6. [73]

   Mr Nguyen said that he did not notice anything unusual on the floor or otherwise he would have stopped to attend to it. He also explained that he stopped pushing the trolley at 10.43.13 because he must have noticed something unusual in the shop. He walked back to the shop with implements in his hand (as can be seen on the footage) to attend to whatever he had observed.

7. [74]

   Mr Nguyen, prompted by the CCTV footage, recalled that he must have placed a yellow danger sign near the accident site after the respondent’s fall (as appears in some of the photographs). Mr Nguyen was able to describe his usual practice when cleaning up a site, but had no recollection of cleaning the accident site itself.

Primary Judgment

1. [75]

   The primary Judge recorded that the CCTV footage depicted Mr Nguyen pushing a trolley containing various cleaning implements towards the Woolworths store located at the top of the screen. Although his Honour did not identify precisely the timing of all Mr Nguyen’s movements, it is clear from the CCTV footage that he began pushing the trolley at a point on the bottom right of the screen at 10.42.43 and positioned the trolley at a point on the top right hand corner of the screen at 10.43.13.

2. [76]

   His Honour found that as Mr Nguyen pushed his trolley along the right hand aisle, he changed direction to his right shortly before the corridor turns towards a food court. Mr Nguyen:

3. [77]

   The primary Judge referred to a series of still photographs or frames taken from the CCTV footage. One of the photographs showed Mr Nguyen moving to the right towards a shop at the top of the screen. According to his Honour, another photograph at 10.43.52 showed Mr Nguyen pushing his trolley to a point beside the front window of a shop “or possibly commencing a turnaround towards the food court”.

4. [78]

   The photograph taken at the moment of the respondent’s fall showed that he was wearing thongs and carrying shopping. The primary Judge said that “it does show that [the respondent] is walking with his daughter and it appears he deviates”. “It” is presumably a reference to the CCTV footage, and not the photograph. However, it is not clear whether his Honour meant to convey that the respondent changed course slightly because he observed water on the floor. In any event, the respondent in his evidence said that although he had seen a “spot” of water “by accident” before he reached the accident site and had avoided that spot, he did not notice the wet patch on which he slipped.

5. [79]

   The primary Judge referred to close-up photographs taken by a member of Scentre’s security staff shortly after the fall. According to his Honour, one of the photographs (Photograph 4) “appear[ed] to [show] fluid consistent with the plaintiff’s evidence and matters raised in the incident report”. His Honour continued as follows:

6. [80]

   His Honour noted that Mr Nguyen in his evidence described the items on his trolley and said that although there was a bucket with some water it was not sufficient to splash over the top. (In fact Mr Nguyen said that, in accordance with his instructions, the bucket was filled only to one tenth of its capacity. This was precisely to prevent any spillage in case of a sudden stop.) Mr Nguyen disagreed with the cross-examiner’s suggestion that he had failed to look to his left or right and had also failed to look down, as he was required to do. However, his Honour said that:

7. [81]

   His Honour continued as follows:

8. [82]

   The primary Judge rejected the appellant’s contention that the respondent had been guilty of contributory negligence. One reason for rejecting the contention was the absence of evidence:

9. [83]

   His Honour returned to the video evidence and observed that:

10. [84]

    The primary Judge concluded as follows:

Submissions

1. [85]

   The appellant submitted that although it arguably could be inferred that the primary Judge found that the wet patch was present when Mr Nguyen passed through the area in question, no clear finding had been made. If, however, his Honour did intend to make such a finding, it was erroneous.

2. [86]

   Mr Sexton relied on a number of matters, of which the following were the most significant:

3. [87]

   If, contrary to the appellant’s submissions, the wet patch was present when Mr Nguyen arrived near the accident site, Mr Sexton submitted that his Honour erred in finding that Mr Nguyen should have detected the water and remedied the situation. Mr Sexton relied on the following contentions:

4. [88]

   In his oral submissions Mr Sexton summarised the appellant’s contentions as follows:

5. [89]

   Mr Marshall SC, who appeared with Mr Del Monte for the respondent, but not at trial, submitted that although the primary Judge did not find explicitly that there was a wet patch on the accident site when Mr Nguyen went past, his Honour implicitly did so. Otherwise there would have been no basis for the finding that Mr Nguyen committed a casual act of negligence by failing to look to the left as he passed the accident site.

6. [90]

   Mr Marshall recognised that the primary Judge had not used probability theory to find that a wet patch had appeared at the accident site before Mr Nguyen arrived. He submitted, however, that the primary Judge’s implicit finding that the wet patch was present at 10.43 could be supported by applying a probability analysis. It was also significant, so Mr Marshall contended, that, with one exception, none of the many people walking through the area between 10.35.43 and 10.44.29 took any observable action to avoid the spillage. The exception, not the subject of an express finding by the primary Judge, was a woman apparently wearing a hijab and a long dress, possibly an abaya. According to Mr Marshall, at about 10.44.14 the woman raised the hem of her garment and deviated from the accident site in order to avoid what could be inferred to be a wet patch.

7. [91]

   In these circumstances, so Mr Marshall argued, the probabilities are that the water appeared at the accident site between 10.35.43 (when Ms Chaemkhuthod passed the accident site for the second time) and about 10.43.01 (when Mr Nguyen began to approach the area). Mr Marshall reasoned that it was more likely that the water appeared during the period of approximately seven and a half minutes between 10.35.43 and 10.43.01 than during the period of 88 seconds between 10.43.01 and 10.44.29 (or a mere 37 seconds between 10.43.52, when Mr Nguyen appears to turn away from the area and 10.44.29, when the accident occurred).

8. [92]

   Mr Marshall accepted that the evidence did not support the primary Judge’s finding that the water at the accident site extended about a metre to one side and he did not seek to uphold that finding. Nonetheless he submitted that the evidence justified a finding that there was a sufficient quantity of water at the accident site to have enabled Mr Nguyen, had he exercised reasonable care, to detect the wet patch and remove the danger before the respondent arrived. Mr Marshall relied on a number of matters, not all of which were referred to or the subject of findings by the primary Judge:

Reasoning

1. [93]

   As the respondent’s notice of contention explicitly (and very fairly) acknowledged, the reasoning of the primary Judge is somewhat disjointed and there are gaps in the analysis. For example, his Honour found that Mr Nguyen should have detected the wet patch at the accident site during his inspection of the area. But there is no explanation as to why his Honour found, at least implicitly, that the wet patch was present when Mr Nguyen arrived in the vicinity of the accident site at 10.43.

2. [94]

   The primary Judge also found that the spillage at the accident site extended for at least a metre in one direction. This finding seems to have provided the basis for the critical conclusion that “any person walking along, whose duty was to look to the ground, should have observed that fluid”. Mr Marshall effectively conceded that the evidence, even at its highest, did not justify his Honour’s finding as to the extent of the wet patch and, as has been noted, Mr Marshall did not attempt to uphold it on the appeal.

3. [95]

   Another critical element in the primary Judge’s reasoning was that Mr Nguyen was “remiss in his duties” because he did not look to the left as he approached the accident site and therefore missed seeing the wet patch. The finding that Mr Nguyen did not look to his left rested on the primary Judge’s interpretation of the CCTV footage, in which Mr Nguyen is seen from behind pushing his trolley towards the Woolworths store. The finding implicitly rejected Mr Nguyen’s evidence that he did not need to move his head to the left and right in the same manner as Ms Chaemkhuthod in order to carry out his duties effectively. The finding also implicitly rejected Mr Nguyen’s evidence that he moved forward “to inspect all around the site”. Having found that Mr Nguyen was doing his best to give truthful evidence, the primary Judge did not explain how the findings could be reconciled with Mr Nguyen’s account and, if they could not, why he was not prepared to accept Mr Nguyen’s evidence.

4. [96]

   The primary Judge rejected the appellant’s contention that the respondent had been contributorily negligent, partly on the ground that the accident site had terrazzo flooring and “there [was] no evidence to suggest that the fluid was easily seen unless, as I find, it required the eye gaze to be placed upon it”. In fact there was evidence from Dr Cooke that “water on the floor [by which he meant a sealed terrazzo floor] is effectively invisible” and creates a high risk of a pedestrian slipping. The primary Judge did not refer to this evidence. As Dr Cooke acknowledged in his report, the fact that a wet patch may be invisible to most patrons does not relieve a cleaner from exercising reasonable care to detect such a patch and to take steps to remove the hazard. But the evidence suggests that even a cleaner exercising reasonable care might not detect a small wet patch on a sealed terrazzo floor, particularly in an area traversed by numerous patrons at about the time the inspection takes place.

5. [97]

   The respondent’s notice of contention argued that the primary Judge ought to have found that Atlantic and Mr Nguyen were bound to conduct the cleaning of the corridor in accordance with the terms of the contract between Atlantic and Scentre. Since the Specification to the contract required an inspection every twenty minutes of “every square metre of area”, the notice of contention suggested that the exercise of reasonable care required Mr Nguyen to inspect every square metre of the corridor. The respondent’s written submissions did not address this ground of the notice of contention.

6. [98]

   In his oral submissions, Mr Sexton contended that the respondent’s argument was misconceived in that it conflated the contractual obligations of Atlantic to Scentre with the duty of care owed by Atlantic and Mr Nguyen to third parties (such as the patrons of the Centre). Mr Sexton also embraced a suggestion from the Bench that (as appears to be the case) no argument along these lines was put to the primary Judge.

7. [99]

   Mr Marshall referred to this ground of the notice of contention only very briefly in his oral submissions. He accepted that the terms of the contract between Scentre and Atlantic could not “supersede” Atlantic’s common law duty of care to patrons of the Centre. However, he submitted that the contractual terms informed the scope of the duty of care in that they specified what cleaners were “supposed to do”.

8. [100]

   The basic principle was stated in Voli v Inglewood Shire Council. [13] In that case an architect who negligently prepared plans and specifications was held liable to a person injured when part of the building collapsed. Windeyer J observed that: [14]

9. [101]

   Consistently with Windeyer J’s observations, the terms of the contract between Atlantic and Scentre inform, but do not determine, the scope of the duty of care owed by Atlantic and Mr Nguyen to patrons of the Centre, including the respondent. The Specification to the contract indicates that the cleaners’ duty of inspection extended to the entirety of the areas for which they were responsible. No doubt Atlantic would be in breach of its contractual obligations to Scentre if, for example, its cleaners simply ignored sections of the common mall that were to be inspected every 20 minutes. If the failure to inspect sections of the common mall resulted in a hazard being overlooked and a patron being injured, Atlantic might well be in breach of the duty of care it owed to the patron.

10. [102]

    The detailed terms of the Specification seem to have been drafted so as to ensure so far as possible that Scentre would discharge its own duties to patrons and, perhaps, to protect itself from potential liability. But even as between Scentre and Atlantic, the Specification cannot be understood to require Atlantic’s cleaners to scrutinise separately every square metre of an area during the course of each 20 minute rotation. Although the evidence did not address the precise size of the area for which Mr Nguyen was responsible, his “loop” required inspection of a substantial area. As a practical matter, no cleaner, no matter how efficient, could be expected to inspect closely every square metre of a large area, especially taking into account his or her responsibility for performing other duties such as removing rubbish and attending to clean-ups. It is to be remembered that the respondent accepted that the system Atlantic had in place, including the allocation of duties to individual cleaners, was adequate.

11. [103]

    The duty owed by Atlantic and Mr Nguyen to patrons of the Centre was not absolute. They were required to exercise reasonable care to detect and remove potential hazards to patrons, including wet patches on the terrazzo floor. The standard to be attained was that to be expected of a cleaner discharging his or her duties of inspection with reasonable diligence and care. A failure to detect a particular hazard did not necessarily involve a breach of that duty. Whether or not it did so depends on the particular circumstances.

12. [104]

    The difficulties with the analysis in the Primary Judgment suggest that there is something to be said for ordering a new trial, particularly having regard to the primary Judge’s approach to the evidence of Mr Nguyen. No doubt for very good reasons neither party submitted that a new trial should take place. It is therefore necessary to address the issues on the basis of the material in the appeal books and the parties’ submissions.

13. [105]

    One of the curious features of this case is that the respondent’s reliance on the actions of the woman wearing the long garment is very much a double-edged sword. Mr Marshall relied on what he said were her responses at 10.44.14 to the wet patch at or near the accident side to support his argument that “the fluid was obvious” and thus the finding that Mr Nguyen, had he exercised reasonable care, should have detected the wet patch. But if the woman had indeed observed a wet patch on the floor, she appears to have been the only person to do so between 10.35 and 10.44.14. Neither party submitted that the CCTV footage indicated that any of the large number of patrons who traversed the area between 10.35 and just after 10.43 (when Mr Nguyen arrived in the area) took action apparently intended to avoid a wet patch.

14. [106]

    If Mr Marshall’s submission that the woman was seeking to avoid the wet patch is accepted, it would tend to undercut the respondent’s case that the wet patch was present before 10.43. That is because there was no evidence as to the source of the liquid and nothing on the CCTV footage to support the finding that the wet patch was present at the accident site before 10.43. The fact (if it be a fact) that the woman was the first person to notice the wet patch tends to suggest that there was no wet patch present on the accident site until after Mr Nguyen reached the area. The submission should therefore be addressed at the outset.

15. [107]

    I have viewed the CCTV footage on numerous occasions, both in Court and outside. In particular, I have repeatedly viewed the footage covering the period from 10.42.43 (when Mr Nguyen appears at the bottom right side of the screen, as he enters the right aisle) to 10.44.29 (when the respondent slips). The viewings include examining the footage frame by frame.

16. [108]

    In my view, it is impossible to interpret the CCTV footage as showing that the woman either lifted the hem of her garment or changed direction in order to avoid water (or anything else) on the floor. The woman can be seen turning to her left, apparently to check on a child who seems to have been wandering off course behind her. But any inference beyond that in my view is entirely speculative, at least without expert evidence interpreting the footage. It is true that one frame seems to show a slight elevation in position of the woman’s garment, but there are a number of plausible explanations for that apparent phenomenon. For example, it may have been a product of the woman turning to her left or it may simply have been due to the camera angle. Moreover, if anything, the CCTV footage suggests that the woman’s path is more or less consistent once she leaves the left aisle of the corridor and crosses to the right aisle before reaching the vicinity of the accident site.

17. [109]

    The conclusion is not inconsistent with the primary Judge’s reasoning. His Honour recorded the respondent’s submission that the woman deviated from her course but made no finding to that effect.

18. [110]

    Mr Marshall also suggested that the CCTV footage shows another patron pushing what appears to be a pram or possibly a shopping trolley deviating from her course as she nears the accident site shortly before the respondent slips. The inference that this patron deviated and did so because she observed surface water is even more speculative than the submission concerning the woman in a long garment. The pram or trolley-pushing patron can be seen following an irregular path both before and after reaching the vicinity of the accident site.

19. [111]

    If Mr Nguyen’s evidence is put to one side, the position can be summarised as follows. There was no wet patch at the accident site at 10.35, but there was at 10.44.29. There is no evidence as to the source of the fluid (presumably water). The CCTV footage is unhelpful as to when the water was first present at the accident site. Despite a very large number of patrons traversing the area in the near vicinity of the accident site between 10.35 and 10.44.29, including on my count 16 between 10.42.43 and 10.44.29, none appears to have detected a potential hazard created by surface water at or near the accident site.

20. [112]

    Mr Marshall relied on the analysis of Hayne J in Kocis v SE Dickens Pty Ltd [16] (Kocis) to support the respondent’s contention that the wet patch was likely to have been present at 10.43, when Mr Nguyen arrived in the area. In Kocis, the plaintiff was injured when she slipped on liquid that had been spilt on the floor of an area under the control of a supermarket. There was no dispute that the supermarket had breached the duty of care it owed to customers by failing to implement a system of regular inspections of the area. The issue was whether the supermarket’s breach of duty caused the plaintiff’s injury. The answer to the question of causation depended on the length of time the liquid had been present on the floor.

21. [113]

    Hayne J reasoned as follows: [17]

22. [114]

    In the passage quoted above, Hayne J emphasised that the analysis applies only if the evidence provides no basis for concluding that it is likely that the spillage occurred at a particular time. If the evidence in this case goes no further than the summary set out at [111**] above, the reasoning in Kocis justifies the primary Judge’s implicit finding that the wet patch was likely to have been present at 10.43, when Mr Nguyen arrived in the vicinity of the accident. The conclusion follows because the water had to be deposited at some time between 10.35 and 10.44.29 and the likelihood, all other things being equal, is that the wet patch was created during the eight minutes between 10.35 and 10.43 rather than during the period of about 90 seconds between 10.43 and 10.44.29. On that basis, I am prepared to uphold his Honour’s implicit finding that the wet patch on which the respondent slipped was present at 10.43 when Mr Nguyen approached the area of the accident site.

23. [115]

    This conclusion does not enable a finding to be made as to when the water was deposited on the floor. The longer the water was there the greater the opportunity for patrons to cross the area and for the moisture to dissipate, evaporate or be absorbed. On the same probability analysis applied in Kocis, the likelihood is that the wet patch was deposited at least four minutes before the respondent slipped – there being nine and a half minutes between the first cleaner passing the area and the fall.

24. [116]

    The next question is whether Mr Nguyen, in the discharge of his and Atlantic’s duty to take reasonable care to detect and remove hazards creating a risk to patrons of the Centre, should have detected the wet patch on which the respondent slipped. In addressing this question it is important to appreciate that Mr Nguyen’s cleaning and inspection duties extended to the whole of the “loop” in the corridor. His duties were not confined to the particular area where the respondent slipped and fell. The fact that Mr Nguyen did not detect the wet patch on which the respondent slipped does not of itself necessarily demonstrate that Mr Nguyen or Atlantic breached the duty of care they owed to the respondent as a patron of the Centre. In that context it must be remembered that it is a mistake to consider first what measures could have prevented an injury and to take these measures as the basis for determining the scope of the duty of care and finding that there was a breach of that duty. [19]

25. [117]

    Although the respondent did not attempt to support the primary Judge’s finding as to the extent of the spill, Mr Marshall submitted that the evidence indicated that the wet patch covered a significant area and thus should have been detected by Mr Nguyen. Mr Marshall relied in part on two close-up photographs of the terrazzo floor taken by Mr Carvajal. According to Mr Marshall the photographs show discolouration indicative of water or liquid on the terrazzo floor.

26. [118]

    The Incident Statement recorded that Ms Celic and Mr Carvajal arrived at the accident site and that Mr Carvajal assisted the respondent by giving him an ice pack for his injuries. Since Ms Celic was contacted at 10.50 am and called an ambulance at 10.55 am, it seems likely that Mr Carvajal took the photographs some time after 10.55 am, at least eleven minutes after the incident. There was no evidence as to whether the accident site was cleaned or otherwise disturbed between the time of the fall and the time the photographs were taken.

27. [119]

    It is by no means clear that the photographs depict the precise point at which the respondent fell. As can be seen from the CCTV footage, the respondent fell to one side and it seems that he was moved prior to or shortly after Ms Celic’s arrival. In any event, it is impossible without the assistance of expert evidence to infer that the photographs depict a wet patch, much less the extent of any such wet patch. All that can be seen by the untrained eye is discolouration to a greater or lesser degree. So far as the evidence goes, the discolouration could be due to any number of causes. In these circumstances, the photographs cannot be reliably interpreted as showing wet patches on the floor areas photographed. They therefore cannot be used to infer, as the primary Judge did, that the fluid on which the respondent slipped was “more than a [casual] amount from a dropped container”.

28. [120]

    Mr Marshall also relied on the two reports in evidence. The IMS Incident Report, including Ms Celic’s Incident Statement, is not particularly helpful as it simply records the respondent’s statement that he had slipped on water. The Supervisor/Cleaner’s Report states that the Supervisor (Ms Chankhuntod) observed “some water on the floor” when she arrived, but provides no further details. As I have noted, no submission was made on the respondent’s behalf on the appeal that an inference adverse to the appellant should be drawn from the appellant’s failure to call Ms Chankhuntod at the trial.

29. [121]

    The primary Judge did not refer to the respondent’s evidence concerning the cause of his fall. In his examination in chief, the respondent said that after falling he felt that his shorts and T-shirt were wet and that his hands and legs were also wet. However, he was not asked to elaborate on this evidence nor to recount his observations as to the extent of the water at or near the accident site.

30. [122]

    In his cross-examination, the respondent appeared to say that he saw some spots of water but that he could not estimate the extent of the water:

31. [123]

    As the primary Judge did not refer to this evidence he made no finding as to whether it was credible nor as to its significance. Had his Honour done so, he would have had to take into account the respondent’s evidence that he observed a “spot of water” on the floor before reaching the accident site and avoided that spot, but that he did not see any water immediately before he slipped and suffered his injuries. The respondent’s failure to detect the wet patch soon after having avoided a “spot” suggests that the wet patch was small and difficult to perceive. The primary Judge would have had to take into account Mr Nguyen’s evidence that he was inspecting all around the area and did not notice anything unusual. In addition it is necessary to consider that it is likely that the wet patch had been present for at least several minutes during which period a number of patrons traversed the area on which the wet patch was located. These matters indicate that caution is required before drawing inferences from the respondent’s evidence as to whether Mr Nguyen, in the exercise of reasonable care, should have detected the wet patch.

32. [124]

    The primary Judge placed considerable emphasis on the contrast between Ms Chaemkhuthod’s actions in moving her head to the right and the left and Mr Nguyen’s relatively constant head position. Ms Chaemkhuthod identified herself in the CCTV footage and indicated that she was “looking around”. However, she was not asked and did not say that in order to carry out a reasonably careful inspection of the floor for possible hazards it was necessary for the cleaner concerned to move his or her head from side to side. Nothing in her evidence contradicted Mr Nguyen’s contention that he did not need to move his head regularly from side to side in order to carry out a proper inspection of the floor. In her re-examination Ms Chaemkhuthod confirmed that while wheeling a trolley with cleaning implements she could see the floor about five metres in front of her and could also see the floor between herself and the trolley.

33. [125]

    The primary Judge relied less on Ms Chaemkhuthod’s oral evidence than on the CCTV footage. In my view, however, it is not permissible to infer from Ms Chaemkhuthod’s apparent method of inspection that Mr Nguyen’s method was defective. The CCTV footage shows Mr Nguyen from behind as he pushes the trolley towards the accident site and beyond. It is a fair inference that he moved his head from left to right to a lesser extent than Ms Chaemkhuthod. But in my view it cannot be inferred that Mr Nguyen did not move his head at all nor that he failed to look for hazards on both sides of the trolley as he moved forward. Any such inferences are particularly problematic in relation to Mr Nguyen’s actions as he approached the accident site. This is because of the distance between the camera and Mr Nguyen as he arrives in the vicinity of the accident site and the lack of clarity in the images.

34. [126]

    CCTV footage in a particular case may well reveal that a cleaner has been derelict in his or her duty. But something more is needed than footage taken at a distance and from behind, where the person concerned appears to be discharging his duties in a reasonably methodical fashion. The difficulty of interpreting the CCTV footage in the manner relied on by the respondent is implicit in questions asked in cross-examination of Ms Chaemkhuthod by the respondent’s counsel:

35. [127]

    As I have explained, the primary Judge’s conclusion that Mr Nguyen and Atlantic breached the duty of care they owed to patrons of the Centre relies on flawed reasoning. Mr Marshall attempted to construct a persuasive alternative case based on arguments identified in the notice of contention and also on arguments not identified in that document.

36. [128]

    There is no doubt that the respondent slipped on a wet patch on the terrazzo floor. In my view, however, the evidence does not establish that the wet patch extended over more than a very small area. The evidence also indicates that a small wet patch was very difficult to detect because of the design of the terrazzo floor (for which Atlantic was not responsible). I infer that the difficulty was exacerbated because the area inspected by Mr Nguyen was heavily trafficked and he had no reason to expect a wet patch on any given section of the corridor. The position may well have been different if the respondent had adduced evidence suggesting that notwithstanding the difficulties of detecting the wet patch a reasonably diligent cleaner should have detected the hazard and removed it. But there was no such evidence.

37. [129]

    I do not think that it was open to the primary Judge to infer from the CCTV footage that Mr Nguyen was remiss in the way he went about the task of inspecting the corridor for hazards. In the absence of an adverse finding as to the credibility or reliability of Mr Nguyen’s evidence, there is no sound basis for concluding that he did not conduct the inspection with reasonable diligence and care. On the basis of the finding that the wet patch was present at 10.45, Mr Nguyen failed to detect the hazard that led to the respondent’s fall. But the duty owed by Atlantic and Mr Nguyen to the respondent and other patrons was to exercise reasonable care to identify and remove potential hazards to their safety. It was not to guarantee that all hazards would be removed. And it is not permissible to conclude with the benefit of hindsight that by reason of Mr Nguyen’s failure to detect a particular hazard that he and Atlantic breached the duty of care they owed to the respondent.

38. [130]

    For these reasons I consider that the primary Judge erred in finding that Mr Nguyen’s “casual act of negligence” was responsible for the respondent’s fall and for the injuries the respondent sustained. Once that finding is set aside, the appeal must be allowed and the respondent’s claim dismissed.

Orders

1. [131]

   The appeal must be allowed and the orders made by the primary Judge set aside. As has been noted, neither party submitted that orders should be made for a new trial. In lieu of the orders made by the primary Judge, the respondent’s claim must be dismissed, with costs. The respondent must pay the appellant’s costs of the appeal. The respondent should have a certificate under the Suitors Fund Act 1951 (NSW).