Raad v VM & KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust

1. [1]

   MACFARLAN JA: On 13 June 2011 Mr Abdul Raad, the appellant, was injured when he slipped and fell on a wet, tiled, outdoor area at a shopping village occupied by the respondent. He commenced an action for damages against the respondent in the Supreme Court, claiming that it failed to take reasonable care for his safety as a user of the shopping village. By a judgment of 29 June 2016, Davies J awarded $75,547 in damages to Mr Raad ([2016] NSWSC 888). This figure included a 10% reduction to Mr Raad’s damages by reason of a finding of contributory negligence on his part.

2. [2]

   On appeal Mr Raad contends that the damages award was inadequate because, first, his Honour erred in finding that Mr Raad had been contributorily negligent and, secondly, because his Honour erred in failing to find that two aspects of Mr Raad’s present condition were causally related to his fall at the respondent’s premises. As to the latter contention, Mr Raad submits that the primary judge should have found that Mr Raad’s pre-existing Scheuermann’s disease was aggravated by the fall and that his narcotic drug dependency resulted from the accident. The primary judge described Scheuermann’s disease as “a skeletal disease that usually begins in adolescence in which the vertebrae grow unevenly, resulting in wedge-shaped vertebrae and a hunched back” (at [86]).

3. [3]

   By intended cross-appeal, the respondent contends that the primary judge erred in finding that it was in breach of its duties as occupier of the premises. It also contends that Mr Raad’s damages should in any event have been reduced by significantly more than 10% to account for his contributory negligence.

The factual circumstances

1. [4]

   Mr Raad slipped and fell on an uncovered tiled area forming part of the respondent’s shopping village. The area provided access from a car park to shops in the village. On the day of the accident the area was wet because it had been raining. Mr Raad said that it was in fact raining when he fell. Expert evidence at the hearing indicated that water tended to accumulate on the tiles in patches as the area had little camber. The primary judge found that Mr Raad was running when he slipped and had by then already taken a number of steps on the wet tiles. The evidence did not enable any conclusions to be drawn about the state of the soles of Mr Raad’s shoes at the time of his accident.

2. [5]

   Mr Raad first sought medical assistance a week after the accident, on 20 June 2011. A CT scan revealed that he had suffered a wedge compression fracture to his T5 thoracic vertebra, with further damage to his T3 vertebra. He was treated with Paracetemol and then Endone. On 27 June 2011, Dr Tadros, a general practitioner, prescribed that Mr Raad take 5 mg of Endone at night.

3. [6]

   On 15 October 2011 Mr Raad was taken to Villawood Detention Centre on the basis, subsequently shown to have been erroneous, that he was unlawfully in Australia. While there, he was assaulted by being punched with a closed fist on the side of his head. He was taken by ambulance to Liverpool Hospital. Triage notes indicate that he complained of pain to his face, neck and upper back and displayed mid-cervical spine tenderness. He was given Panadeine Forte, Valium and morphine.

4. [7]

   Mr Raad was released from detention on 6 January 2012 but has not since engaged in employment. He is addicted to prescription drugs, has psychological issues and complains of continuing back pain.

The expert evidence on liability

1. [8]

   Mr Ian Burn, a consulting engineer, provided two expert reports to Mr Raad.

2. [9]

   In the first, Mr Burn described the observations he made on 9 September 2011, about three months after Mr Raad was injured. Mr Burn’s observations were made on a wet day. He said that the tiles in the relevant area were “a 335 mm square textured surface glazed style of tile”. He referred to the area as a “near level surface finished using a glazed tile with marginal under foot wet friction characteristics and no effective surface drainage”. He said that there was a significant difference in “wet friction characteristics” between tiles in the relevant area that appeared to be older and those that appeared to be newer. Yet he also stated that “… the minimum acceptable pendulum test rating for the tiled surface provided would need to be class “W” or better”, but “the tiles would more than likely test equivalent to a class “Y” surface, and maybe a “X” surface for the newer tiles”. A table in the report explains that a class “Y” surface means that the tiles have a “high” contribution to the risk of slipping when wet and class “X” tiles have a “moderate” contribution. In contrast, class “W” tiles have a low contribution to the relevant risk. Although Mr Burn did not carry out testing to confirm these observations, his report indicates that, in his opinion, even the newer tiles provided inadequate friction in their untreated state. He concluded that “[t]he slip occurred due to there being inadequate underfoot friction when the tile surface was wet due to the presence of rain water lying there being unable to drain away”. He then referred to means by which the slip characteristics of the tiles could have been improved, including by application of an anti-slip treatment to the tiles’ surface.

3. [10]

   When Mr Burn attended the area again on 26 November 2013, he observed that the tiles had been treated in the two years since his previous visit but that in significant areas the treatment had “worn away returning the surface back to the original condition”. He found that the tiles on which the treatment had worn away were “a high risk, verging on very high risk surface for pedestrians if wet whilst the treated surface is a moderate risk, almost low risk rated surface” (his emphasis). He did not distinguish between the newer and older tiles to which he had referred in his first report.

4. [11]

   Dr John Cooke, a consultant architect, provided a report dated 23 October 2013 to the respondent. When he tested the tiles on 21 October 2013, he found that the dynamic coefficient of friction on tiles from which the anti-slip treatment had worn away was 0.24, whilst the tiles which remained coated had a reading of 0.40. He said that his test results were in accordance with Mr Burn’s opinion that the uncoated tiles had “marginal under foot wet friction characteristics”. By reference to a relevant standard, he described the uncoated tiles as “detectably slippery”, “marginally safe”, “safe for normal stride, pace and attention” and “non-slip with reasonable care” when wet with water. He concluded that “the uncoated tiles provide adequate slip resistance for pedestrians taking reasonable care under wet conditions”. He did not make the distinction between older and newer tiles made by Mr Burn in his first report.

5. [12]

   In their joint report of 27 August 2015, Mr Burn and Dr Cooke concluded:

6. [13]

   Dr Cooke’s final comment recorded in the report was:

7. [14]

   Neither expert was cross-examined.

The expert medical evidence

1. [15]

   The relevant parts of a joint report prepared by Drs Giblin and Maxwell, orthopaedic surgeons, were in the following terms:

2. [16]

   A joint report prepared by three doctors who specialise in rehabilitation, Professor Richard Jones, Dr Winer and Dr Adler, was in the following terms:

3. [17]

   Individual reports of each of these doctors were in evidence. None of the doctors was cross-examined.

The judgment at first instance

1. [18]

   Based on Mr Burn’s observations some three months after the accident, the primary judge inferred that there was no non-slip coating on the subject tiles at the time of Mr Raad’s accident and, as it had been raining, that there would have been water lying on them. He noted that in their joint reports the experts had agreed that the tiles “could have been made safer, inter alia, by treating them to give them a non-slip surface”.

2. [19]

   Although he found it “difficult to see how any testing carried out in October 2013 [by Dr Cooke] and subsequently in November 2013 when Mr Burn reinspected the site, can be of any assistance in determining the state of the tiles in June 2011” (at [40]), his Honour concluded:

3. [20]

   His Honour found that Mr Raad was contributorily negligent in failing to adjust his pace after he took a number of steps on the tiles. His Honour reduced Mr Raad’s damages by 10%.

4. [21]

   The primary judge described Mr Raad’s case on damages as follows:

5. [22]

   The primary judge reached the following conclusions in relation to damages for non-economic loss:

6. [23]

   His Honour made the following findings regarding past economic loss:

7. [24]

   His Honour indicated that he did not derive much, if any, assistance from Mr Raad’s evidence, having found it to be unreliable. On the contrary, he derived considerable assistance from surveillance evidence which to a considerable extent contradicted Mr Raad’s evidence of his continuing disabilities.

Consideration of the appeals on liability

1. [25]

   In support of its cross-appeal, the respondent submitted that there was no satisfactory evidence of the state of the tiles at the time of Mr Raad’s accident because such testing as was done took place over two years after the accident. The result, the respondent submitted, was that there was no basis upon which the primary judge could have concluded that a reasonable person in the respondent’s position would have rendered the tiles less slippery by having a non-slip treatment applied to them.

2. [26]

   In my view however, for the following reasons, the expert evidence established that the respondent breached its duty as occupier to exercise reasonable care so that its premises were safe for users exercising reasonable care for their own safety (see Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [45]). As the tiled area provided access between the shopping village and the car park, it was to be expected that all manner of people would be using it, including the young and the old, the attentive and the inattentive, and the hurried and unhurried. The camber of the tiled area and lack of covering over it meant that it was likely to be wet and have water pooled on it when it rained. The respondent should have anticipated that some people might run over the tiled area or at least proceed at above a normal walking pace, including at times when it was raining. As in Ratewave Pty Limited v BJ Illingby [2017] NSWCA 103, “it was reasonably to be expected that users of [the] means of access would include those who were distracted or inattentive or even less than careful” (at [57] per Meagher JA). Mr Raad was one such person, and Meagher JA’s observations are equally applicable to the present case.

3. [27]

   For the following reasons, the expert evidence to which I have referred established that there was a not insignificant risk that a person, such as Mr Raad, proceeding hurriedly over the tiled area whilst it was raining, might slip and fall.

4. [28]

   All the tiles in the relevant area were uncoated when Mr Burn attended the site for his first inspection. There was no indication that any anti-slip treatment had been applied to them either before or after the accident. When Dr Cooke inspected the area approximately two years later, some of the tiles were bare. Apparently this was the result of non-slip treatment that was applied to the tiles after Mr Burn’s first inspection of the site having worn off. In these circumstances, it can readily be inferred that at the date of the accident the tiles were in a similar bare state to the bare tiles tested by Dr Cooke two years later.

5. [29]

   The conclusions of the experts expressed in their joint report demonstrate that the safety of people walking on the untreated tiles in wet conditions was no more than borderline. The epithets they used were “detectably slippery”, “marginally safe”, “safe for normal stride, pace and attention” and “non-slip with reasonable care” ([12] above). Importantly, these observations were said to apply only to a person walking with a normal stride and at a normal pace, and paying normal attention. Dr Cooke emphasised this in his final comment noted in the report (see [13]).

6. [30]

   In this context there was clearly a significant risk of slipping for those people who, in wet conditions, ran across the tiles, or moved at a faster than normal walking pace, or used a greater than normal stride. As I have indicated, the respondent should have anticipated that people would traverse the tiled area in this manner.

7. [31]

   The present case is distinguishable from Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29. In that case, a pedestrian who was walking along a concrete footpath tripped and fell as a result of stepping on a part of the footpath that erosion had caused to subside. The pedestrian’s negligence action against the local council failed because the imperfection in the footpath was readily perceivable. The plurality distinguished the earlier High Court decision in Webb v South Australia (1982) 56 ALJR 912 on the basis that the defect in the footpath that caused the pedestrian to fall in that case was not able to be readily perceived (Ghantous at [163]). Likewise in Neindorf v Junkovic (2005) 80 ALJR 341; [2005] HCA 75, the majority of the High Court considered that the imperfection in the driveway upon which the respondent tripped was readily discernible. The position was otherwise in the present case because the slipperiness or otherwise of the subject tiles that resulted from their lack of coating (as distinct from their wetness) would not have been obvious to Mr Raad (or to a reasonable person in his position) before he attempted to traverse them.

8. [32]

   In my opinion, the relevant risk was of such magnitude that a reasonable person in the respondent’s position would have responded to it by significantly reducing the risk of slippage. This could have been achieved by taking the relatively low cost step of treating the tiles with a non-slip product, or taking some equally effective other step.

9. [33]

   The respondent also submitted that the primary judge erred when considering the issue of causation by applying a test of material contribution rather than the “but for” test for which s 5D(1)(a) of the Civil Liability Act 2002 (NSW) provides. Bearing in mind his Honour’s reference in this context to s 5D(1)(b), indicating his advertence to the requirements of s 5D(1), I am not convinced that his Honour should be understood to have applied an incorrect test. In any event this Court is in as good a position as his Honour was to form a view about this issue. I readily infer in light of the expert evidence that, as a matter of probabilities, Mr Raad’s accident would not have occurred if the respondent had treated the tiles with a non-slip product or taken one of the other steps to which the experts referred. The very point of treating the tiles would have been to prevent users of the tiled area slipping, including people running in wet conditions.

Contributory negligence

1. [34]

   Whilst an occupier’s duty of care is, as I have noted in [26] above, appropriately framed by reference to “users exercising reasonable care for their own safety”, that limitation does not foreclose the possibility of a breach of duty occurring in relation to someone who has been contributorily negligent. As indicated in Dederer at [47], an occupier owes a duty to all users of its premises or (in that case) facility, whether or not the users take ordinary care for their own safety. The occupier owes the same obligation of reasonable care in respect of each user but “the extent of that obligation is to be measured against a duty whose scope took into account the exercise of reasonable care by [users] themselves”. As stated in Thompson v Woolworths (Q’land) Pty Limited (2005) 221 CLR 234; [2005] HCA 19 at [35] “the weight to be given to an expectation that the other will exercise reasonable care for his or her own safety is a matter of factual judgment”.

2. [35]

   In the present case, the nature of the premises and the variety of foreseeable users (see [26] above) lead to the conclusion that a reasonable person in the respondent’s position needed to contemplate the possibility that particular users might be inattentive or careless. Such a person would have taken reasonable steps (which were available to the respondent) to reduce the significant risk of a person slipping and falling when the tiled area was wet, particularly if a person was travelling at a greater than normal pace. For the reasons I have given, there was thus a breach of duty. There was, however, also contributory negligence on Mr Raad’s part because he ran over a tiled area upon which water was pooling from the rain. Care for his own safety required a more cautious approach.

3. [36]

   The assessment of the percentage deduction to be made for contributory negligence is a finding apportioning responsibility for an accident. It involves an evaluative judgment to which the principles in House v R (1936) 55 CLR 499; [1936] HCA 40 apply (see Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492 at 493-494). As in most cases, different views could be taken about the percentage deduction appropriate to the present case. In my view, the percentage adopted by the primary judge fell within the range of the percentages that were open to him. In these circumstances, and as no specific error in his approach has been established, the challenges to his Honour’s conclusion should be rejected.

Consideration of the damages appeal

1. [37]

   Mr Raad submitted that, as a matter of principle, the consequences of a narcotic drug addiction acquired subsequent to actionable conduct of a defendant may be reflected in a plaintiff’s recoverable damages. This is undoubtedly correct but, as with all bodily or mental conditions in relation to which recovery is sought, the plaintiff must prove that the condition was caused by the actionable conduct. In the present case however, as the primary judge found, Mr Raad did not prove that his addiction was caused by the respondent’s breach of duty.

2. [38]

   There was no medical evidence that explicitly attributed Mr Raad’s addiction to his slip and fall accident, nor was this Court referred to any evidence of Mr Raad that addressed the issue. Moreover there was no basis in the evidence for an inference of a relevant causal connection. For all that the evidence indicated, the addiction may have flowed from drugs Mr Raad was prescribed after he was assaulted whilst in detention (see [6] above), or from other circumstances. The evidence did not suggest that after his slip and fall accident, but prior to the assault, Mr Raad was prescribed more than 5 mg of Endone, to be taken once a day (see [5] above). Based on the conclusions in the joint rehabilitation experts’ report that any pain caused by Mr Raad’s injury from the accident should have resolved within three to six months, his accident should not have required him to take this apparently modest daily quantity of medication for very long. On the other hand, after being taken by ambulance to hospital following the assault on him, he was given morphine and prescribed other narcotic drugs (see [6] above). Whether Mr Raad’s addiction resulted from that treatment, or from that following his slip and fall accident, or from other circumstances, cannot be determined on the evidence. As to the possibility of other circumstances having been causative, I note that Mr Raad came to have psychological issues, including at least depression. No psychiatrist or psychologist gave evidence of the cause or causes of any such mental condition and their connection, if any, with Mr Raad’s drug addiction or with his slip and fall accident. There was not even any evidence of when the addiction commenced.

3. [39]

   Furthermore, as the respondent pointed out, the parties framed questions for the two sets of medical experts to answer in their joint reports. The answers do not suggest any connection between Mr Raad’s drug addiction and his slip and fall accident. It was open to Mr Raad to have further questions asked of the experts at first instance to ensure that they addressed that matter, but he did not take that course.

4. [40]

   Mr Raad’s second submission in support of his damages appeal was that the primary judge erred in not finding that Mr Raad’s Scheuermann’s disease was aggravated by his slip and fall accident.

5. [41]

   This Court was not referred to any medical evidence, or indeed to any lay evidence from Mr Raad or anyone else, that suggested that such an aggravation occurred, other than, arguably, the contents of the rehabilitation experts’ joint report. In answer to Question 1 in that report, Professor Jones said that there was a “possibility” that such an aggravation had occurred and Dr Winer said that it “may have” occurred (see [16] above). The third doctor, Dr Adler, was recorded as saying that:

6. [42]

   This record of Dr Adler’s opinion is insufficient to establish that the primary judge erred in excluding an aggravation of Mr Raad’s Scheuermann’s disease, resulting from the slip and fall accident, from his Honour’s assessment of damages. Dr Adler did not express a view as to the nature or extent, or consequences, of the aggravation. Further, the opinions of the other two doctors recorded in the joint report were of a much more tentative kind, not going so far as to indicate the probability of an aggravation having occurred. In any event, those two other opinions, being as brief as they were, also do not address the nature, extent or impact of any such aggravation. Importantly, the expert orthopaedic evidence also provided no support for Mr Raad’s submission on appeal.

7. [43]

   In the course of the hearing in this Court, Mr Raad was given leave to supply references to medical evidence before the primary judge which he said supported his submission that his Scheuermann’s disease was aggravated by his slip and fall accident. Most of the references that were provided did not squarely raise the issue. Aside from references to the rehabilitation experts’ joint report cited in paragraph [16] above, the only other relevant evidence was the following passage in a report of Dr Walker, Consultant Neurologist:

8. [44]

   This evidence contradicts Mr Raad’s submission and is consistent with the opinion of the rehabilitation experts, set out in their joint report, that “[a]ny continuing spinal pain could be associated with the pre-existing Scheuermann’s disease, aggravated by psychological dysfunction” (see above at [16]).

9. [45]

   For these reasons, Mr Raad’s challenges to the damages award should be rejected.

Orders

1. [46]

   In light of my conclusions recorded above, both the appeal and the application for leave to cross-appeal should be dismissed. As both parties have failed in their challenges to the judgment below and the challenges of each party occupied similar amounts of time, there should be no order for costs of either the appeal or application for leave to cross-appeal.

2. [47]

   SIMPSON JA: I agree with Macfarlan JA.

3. [48]

   SACKVILLE AJA: I agree with Macfarlan JA.