Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Jackson v McDonald's Australia Ltd [2014] NSWCA 162
• Hearing dates: 3, 4 February 2014
• Decision date: 26 May 2014
• Before: McColl JA at [1]; Barrett JA at [46]; Ward JA at [181].

Decision

1. Appeal dismissed.

2. That the appellant pay the respondents' costs of the appeal.

3. Cross-appeal allowed in part.

4. Set aside orders 3 and 5 made by the District Court on 13 December 2012 and order in lieu thereof that the second cross-claim be dismissed.

5. That the first respondent (second cross-respondent) pay the costs of the second respondent (cross-appellant) of the cross-appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - negligence - slip and fall at retail premises - floor recently mopped - mopping not conducted so as to leave dry passageway - no findings by primary judge concerning duty of care and standard of care - such findings essential - appeal court able to make the findings - whether breach of duty of care - if breach, whether it was causative of the damage suffered - contributory negligence - assessment of damages - respective responsibilities of occupier, cleaning contractor and the contractor's insurer - construction of cleaning contract and insurance contract
• Legislation Cited: Civil Liability Act 2002 (NSW); Corporations Act 2001 (Cth); Evidence Act 1995 (NSW)
• Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420; Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479; Benmax v Austin Motor Co Ltd [1955] AC 370; Bradshaw v McEwans Pty Ltd (HCA, unreported, 27 April 1951): Cherry v Jaymardo Pty Ltd [1998] NSWCA 57; Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264; Dell v Dalton (1991) 23 NSWLR 528; Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301; Evans v Evans [2011] NSWCA 92; Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418; Francis v Lewis [2003] NSWCA 152; Gattellaro v Westpac Banking Corporation [2004] HCA 6; 78 ALJR 394; Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540; Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614; Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166; Jones v Dunkel [1959] HCA 8; 101 CLR 298; Kocis v SE Dickens Pty Ltd [1998] 3 VR 408; Luxton v Vines [1952] HCA 19; 85 CLR 352; Marien v Gardiner [2013] NSWCA 396; Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179; Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341; Oxley County Council v MacDonald [1999] NSWCA 126; Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98; Riley v The Owners - Strata Plan 73817 [2012] NSWCA 410; Roads & Traffic Authorities (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 334; Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; 192 CLR 431; Sakoua v Williams [2005] NSWCA 405; 64 NSWLR 588; Shirt v Wyong Shire Council [1978] 1 NSWLR 631; State of Queensland v Kelly [2014] QCA 27; Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422; Warren v Coombes [1979] HCA 9; 142 CLR 531; Wilkinson v Law Courts Ltd [2001] NSWCA 196; Wilson v Peisley (1976) 50 ALJR 207
• Category: Principal judgment
• Parties: Christopher Mark Jackson (Appellant); McDonald's Australia Ltd (First Respondent); CGU Insurance Ltd (Second Respondent)
• File Number(s): 2012/339749

Decision under appeal

• Date of Decision: 2012-10-25 00:00:00
• Before: Gibson DCJ
• File Number(s): 2009/334711

Judgment

1 McCOLL JA: I have had the benefit of reading in draft Barrett JA's reasons. I agree with the orders his Honour proposes for the following reasons. I shall repeat the facts only to the extent necessary to explain why, in my view, as both the first respondent ("McDonald's") and the second respondent, CGU Insurance Ltd ("Holistic") submitted in their Notices of Contention, the appellant did not establish that either was guilty of a breach of the duty of care owed to the appellant as an entrant to the George street premises.

Scope of the appeal

2 The appellant complained that the primary judge failed to address the duty of care, if any, the respondents owed him, the extent of the duty, breach, causation and damage. Accordingly he argued her Honour did not consider the issue of liability correctly. He did not seek a retrial but, rather, asked the Court to find in his favour on breach of duty and causation and assess damages. Both respondents accepted that this was an appropriate course if the Court were of the view that it was open to it to do so. However Holistic suggested that before the issue of negligence on either McDonald's or Holistic's part could be reconsidered, the appellant had to persuade the Court to overturn a number of factual findings made by the primary judge and that the Court may feel inhibited in so doing not having seen the witnesses.

3 The difficulty with the primary judge's reasons is that she did not address the issues of duty of care, its scope or breach. Accordingly, her Honour did not make germane findings of fact. Rather, her Honour only considered the issue of causation saying (at [55]) that in so doing she was acceding to the parties' submission that the first question was whether the appellant had established that he fell because there was water on the sole of his shoe which was present because he had just walked over the wet floor.

4 That was, with respect, not the correct approach. As Barrett JA observes it is important that a trial judge makes findings as to the nature of the duty of care, if any, a defendant owes to the plaintiff, the extent of the duty, breach and damage. This is because the "constituent elements of the tort of negligence - duty, breach and damage - considered seriatim, progressively increases the specificity of the inquiry into how the incident occurred and the way in which damage was sustained: Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 (at [55]) per Kirby J. There may of course be cases where the nature of the duty, its scope and breach may not be in issue, (although even in such cases the agreement as to those matters should be spelled out) but that was not this case. Breach and causation were vigorously contested at trial and on appeal.

5 In such circumstances it was the primary judge's duty to find the facts and "draw from them the inference of fact whether or not the defendant had been negligent": Benmax v Austin Motor Co Ltd [1955] AC 370 (at 373 - 374) per Viscount Simonds; see also Evans v Evans [2011] NSWCA 92 (at [141]) per Campbell JA (Giles JA and Sackville AJA) agreeing.

6 Despite the absence of findings on these issues, it is open to the Court to determine the issues without sending the matter back for retrial. The parties did not contest the nature of the duty of care the appellant was owed or its scope. The question whether the appellant established that either or both of the respondents had breached their duty of care depended on inferences to be drawn from relatively uncontroversial evidence. The Court was in as good a position as the primary judge to determine the inferences to be drawn in this respect: Warren v Coombes [1979] HCA 9; 142 CLR 531.

Duty of care

7 It was common ground that McDonald's owed the appellant a duty to take reasonable care to avoid a foreseeable risk of injury to him arising from the physical state of its land, on the assumption that he used reasonable care for his safety: Australian Safeways Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (at 488) per Mason, Wilson, Deane and Dawson JJ; Roads & Traffic Authorities (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 334 (at [45]) per Gummow J. The appellant submitted that Holistic's duty was relevantly identical with McDonald's, a proposition Holistic did not dispute insofar at least as liability to the appellant was concerned.

8 Gleeson JA (with whom Emmett JA and Tobias AJA agreed) addressed the content of the assumption that an entrant uses reasonable care for his or her safety in his pellucid judgment in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 (at [159]) as follows:

"[159] The scope of the occupier's duty of care is marked out by the relationship between the occupier and users exercising reasonable care for their own safety. Thus, 'the weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case': Roads and Traffic Authority of New South Wales v Dederer and Another [2007] HCA 42; 234 CLR 330 at [45] (Dederer). This involves a factual judgment which may depend on the circumstances of the case: Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234 at [35]."

Breach of duty of care

9 Foreseeability of risk of injury is not determinative of breach of duty of care: Francis v Lewis [2003] NSWCA 152 (at [40]) per Mason P (Tobias JA agreeing). The occupier's obligation is that of reasonable care. Its duty is not to make the premises as safe as "reasonable care and skill on the part of anyone can make them": Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 (at [92]) per Gleeson CJ. It is not an insurer of entrants: Kocis v SE Dickens Pty Ltd [1998] 3 VR 408 (at 429) per Hayne J. What constitutes the exercise of reasonable care depends on the circumstances of each case: Wilkinson v Law Courts Ltd [2001] NSWCA 196 (at [32]) per Heydon JA (Meagher JA and Rolfe AJA agreeing); Kocis v SE Dickens Pty Ltd (at 409) per Ormiston JA; (at 415) per Phillips JA.

10 The question whether the respondents breached their duty of care to the appellant was governed by s 5B of the Civil Liability Act 2002 (NSW) which provides:

"(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm."

11 Section 5B can be seen to reflect the common law as to the standard of care (that is, the measure of the discharge of the duty of care) applicable to an occupier which is what, if anything, a reasonable person in the occupier's position would, in the circumstances, do by way of response to the foreseeable risk: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 (at 662 - 663) per Deane J; Australian Safeway Stores (at 488); Neindorf v Junkovic (at [8]).

12 Section 5C was also relevant (as the primary judge noted (at [9] - [10])), in particular, s 5C(b) which provides that "the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done".

Proving breach of duty

13 "The conduct relevant to the breach inquiry is the foreseeability of harm resulting from the acts or omissions of the defendant, or its servants, proved to have occurred": Shirt v Wyong Shire Council [1978] 1 NSWLR 631 (at 639 - 640) per Glass JA. At the stage of breach, the primary judge has to identify, "with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk": Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 (at [192]) per Gummow and Hayne JJ.

14 Although the judgment as to what the reasonable person would have done to avoid what is known at trial to have occurred must be made after the event, it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [126]) per Hayne J; applied in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 (at [31]).

15 As is apparent from s 5C(b) of the Civil Liability Act, whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome: Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 (at [92]) per McColl JA (Macfarlan JA agreeing); see also Marien v Gardiner [2013] NSWCA 396 (at [13]) per Meagher JA (Macfarlan and Emmett JJA agreeing). The test for negligence is always "whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care": Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 (at [13]).

16 The appellant bore the legal (and evidential) burden of proving on the balance of probabilities on all the evidence at trial that one or both of the respondents owed him a duty of care which had been breached in a manner which caused his injuries; if he called evidence "sufficiently weighty to entitle, but not compel, a reasonable trier of fact to find in [his] favour", the respondents bore an "'evidential burden' in the sense of a 'provisional' or 'tactical' burden" such that if they failed "to call any or any weighty evidence, [they ran] a risk of losing on the issue": Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182 (at [46], [50], [53]) per Heydon J.

The risk of harm

17 The primary judge identified the risk of harm (s 5B(1), Civil Liability Act) as "the risk of harm that a plaintiff might slip". However that was, with respect, an insufficient description. The breach inquiry required the primary judge to identify accurately the actual risk of injury the appellant faced as it was only through the correct identification of the risk that her Honour could determine what a reasonable response to that risk would be: Roads and Traffic Authority of NSW v Dederer (at [18], [59]) per Gummow J. I agree with Barrett JA's description of the relevant risk (at [88]) as that "a person would slip on the wet floor or soon after walking through".

18 I also agree with Barrett JA (at [88]) that that risk was both foreseeable and not insignificant in the s 5B(1)(a) and s 5B(1)(b) senses. I differ from his Honour, with respect, in that, in my view, the appellant did not establish that McDonald's (and Holistic) failed to take the precautions a reasonable person would have taken to avoid that risk of harm.

Where the appellant fell

19 Before proceeding further it is necessary to determine where the appellant fell.

20 The primary judge recorded (at [24]) that there was an inconsistency in the appellant's evidence in that he gave two versions of where he fell. In chief he said he fell on the second or third step of the stairs leading from the entrance level floor to the floor at the end of which the service counter was located. In the course of cross-examination however he said he fell (I infer he meant slipped) at the top. As the appellant accepted, despite noting this discrepancy, her Honour did not make any express finding about the precise point where he fell.

21 In this Court, the appellant contended for a finding that he slipped from the surface of the top step. This had the advantage (of what significance in real terms might be doubted) that his fall took place in closer proximity (by the width of one or two steps) to the wet floor, so that there was less opportunity for any residue of the water across which he had walked to have been wiped off the sole of his shoe.

22 In the course of his cross-examination the appellant was shown a photograph attached to a letter giving particulars from his solicitors (Stacks) to McDonald's solicitors (McCulloch & Buggy) in July 2009. Under the heading "Liability", the letter referred to the photograph which it described as "a photograph of the accident site marked with an 'X' where our client slipped at the top of the stairs and another 'X' where he landed". The "X" at the top of the stairs was marked on the tiled area between the end of the bubble tile area and the edge of the top step.

23 Having been shown the photograph, the appellant was asked what he remembered as being the place where he fell. He responded:

"As I look at it now, I remember it being at the top of the steps."

24 Slipping at the top of the stairs substantially accords with the Second Amended Statement of Claim, which was the ultimate pleading on which the trial proceeded, which alleged that the appellant slipped and fell in McDonald's premises, but did not plead that he slipped on steps or stairs. Nor was any mention made of a slip on steps when McDonald's solicitors sought particulars of the precise location in the restaurant where the appellant slipped and fell. Rather the response was that I have set out in [23].

25 In my view it is apparent on the basis of the solicitor's letter, the marking of the photograph and the appellant's evidence recorded in [22] - [23] above, that the appellant did not actually slip on a step, in the sense that the step played any role in his fall. Rather, I would understand the pleadings and particulars, his evidence and the marking of the photograph as being consistent with him having slipped at the top of the step, that is to say, on the flat (dry) floor, then having fallen onto the steps in the position which was also marked on the photograph forwarded by his solicitors.

Whether McDonald's and Holistic failed to take precautions against a risk of harm a reasonable person in their position would have taken

26 McDonald's disputed what it contended was both the appellant and Holistic's cases on breach, namely that it was sufficient to prove breach to establish that the floor across which the former walked prior to his fall was wet. In any event, it contended that it had taken reasonable precautions to guard against such a risk by having a cleaning system which involved using non-slip detergent, warning that the floor was wet, having non-slip surfaces on the floor tiles and a non-slip bubble area at the top of the stairs.

27 The appellant's case on breach as presented in this Court was that McDonald's and Holistic breached their duty of care to him by mopping the floor in such a way as not to leave a dry passage over which customers could walk. The obligation to so act appeared in McDonald's Operational Procedures Sheet that required those cleaning inside its store to "mop small zones at a time ...". There was also evidence that Holistic and McDonald's staff were instructed to mop inside using the "dry mop" method which did not leave large amounts of water on the floor. Mr Eassey saw Holistic use that method on several occasions. I agree with Barrett JA's reasons (at [128] ff) for accepting the primary judge's finding "the incident must be taken to have occurred within the period 4am to 7am during some part of which Holistic carried out the daily cleaning routine". In the light of Mr Eassey's observations as to Holistic's compliance with McDonald's cleaning methods, I would infer that the floor was dry mopped. It is also consistent with the appellant's observation that he saw a "thin film" of water on the floor that it had been dry mopped in accordance with McDonald's system.

28 There was an inconsistency on this point between the appellant's evidence and that of Mr Hodson, with the latter describing what he saw as "a big mopping mess". The appellant accepted, in this Court, that for the purposes of reconsidering the issue of liability it was not necessary to decide which of his or Mr Hodson's evidence should be preferred. He was content for the Court to determine that issue on the basis that the floor had been dry mopped.

29 Mr Eassey accepted that the direction that the floor be mopped in small zones was intended to leave a passageway around the area being mopped which customers could use "if needed" to traverse the area. He emphasised that the passageway was available "if needed". I accept that it is an available inference both from the Operational Procedures Sheet and Mr Eassey's evidence that best practice was that there be such a passageway so that customers would not have to walk across a wet area in McDonald's premises.

30 The direction that mopping be done in small zones for the reasons I have outlined in the previous paragraph was not, however, the only precaution McDonald's took to guard against the identified risk of harm.

31 Other precautions McDonald's took included the provision of non-slip tiles, non-slip strips on the stairs, non-slip tread at the top of the stairs (the white bubble tiles) and three handrails, use of non-slip detergent and the placing of warning signs.

32 The evidence that the tiles, slips, tread and detergent were "non-slip" was unchallenged. As Barrett JA says (at [122]) the appellant did not call any evidence which addressed the issue of the slip resistance of the surfaces in McDonald's premises or, I would add, the non-slip qualities of the detergent it used and the effect of such substances on the soles of the shoes he was wearing on the day. I agree with his Honour's conclusion that the appellant in this respect left an evidentiary vacuum.

33 It is also the case that McDonald's did not call expert evidence as to the precise non-slip qualities of the tiles, slips, tread and detergent.

34 The fact that McDonald's lay witnesses' evidence was unchallenged does not mean the tribunal of fact is obliged to accept it. It may be rejected if it is inconsistent with other evidence that which the tribunal accepts, or if it is inherently incredible: Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 (at [105]) per Campbell JA (Allsop P and Basten JA agreeing).

35 Neither caveat applies in this case. Indeed McDonald's called cogent lay evidence of the efficacy of its non-slip detergent and, it might be inferred, its interaction with the non-slip surfaces to which it was applied.

36 Mr Shalen, McDonald's shift manager at the store, said he had walked on a floor mopped with the detergent with its "non-slip agent" and "you can walk on it straight after it's applied". He also said that the mopped floor "felt as normal ... the same as before" and that the dry mop method left "a thin film of water which probably will roughly dry within a couple of minutes". As he explained the detergent to Holistic's employee Sam, the non-slip agent in the detergent made "the floor much safer than like it's wet with water only." Mr Eassey, who described the detergent as "slip resistant" explained that as meaning that "it doesn't make the surface slippery when you mop it".

37 Of additional significance, it might be thought, and as McDonald's submitted, was that neither Mr Hodson nor the appellant said at any stage that the wet floor they walked on was slippery. This was even though, on the appellant's evidence, they had walked the length of the corridor on the wet floor. According to Mr Shalen's evidence, that was a substantial distance, taking into account that the premises were nearly 40 metres long and, according to a plan he drew (exhibit K), at least three-quarters of that length was between the top of the stairs and the counter. (I acknowledge that the primary judge found (at [62](b)) that the extent to which the appellant had walked across the floor had been substantially overstated, but the basis of that finding is not, with respect, apparent from the evidence. The appellant gave evidence that he walked up to the counter and the floor was wet leading up to that point. Even on Mr Hodson's evidence that there was an excessive amount of water on the floor across which the two men walked, he did not suggest that it was slippery).

38 Thus, the fact that on the appellant's evidence the mopping had been done in such a way that he had to walk across a wet floor rather than over dry passage left if floor mopping was undertaken in accordance with McDonald's system was not the end of the breach inquiry: s 5C(b), Civil Liability Act. As I have said that inquiry had to look at whether, on all of the evidence, the appellant had established that McDonald's had failed to take the precautions a reasonable person in its position would take by way of response to the reasonably foreseeable risk of harm, bearing in mind that it was entitled to assume that persons in the position of the appellant would exercise reasonable care for their own safety.

39 McDonald's had taken other precautions to guard against the possibility that, for whatever reason, a person may walk across a wet mopped surface. Thus mopping took place with a non-slip detergent which did not leave the floor slippery and was safe to walk upon. In such circumstances it is clearly an available inference that it was safe to walk from that surface onto a dry surface. If one accepts that the floor had been dry mopped and that Holistic had undertaken that cleaning then, even though it had failed to leave the dry area, having used the non-slip detergent (that being the only product McDonald's supplied for its use), its position insofar as breach is concerned is, in my view relevantly assimilated with McDonald's.

40 In addition the appellant saw a sign warning of wet floors near the counter when he reached it. He agreed that he knew the floor was wet and potentially slippery. McDonald's and Holistic were entitled to assume that, in addition to the precautions they had taken to guard against the foreseeable risk of harm, a person in the appellant's position would take the opportunity to wipe off any liquid that may have remained on the soles of his shoes either in the 1-3 metres of dry floor over which he passed before reaching the top of the stairs or on the dimpled area at their top.

41 In my view the facts in this case are quite different from those found in Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482 ("Glad Retail"). In that case the plaintiff was injured when she slipped on a travelator after walking across a rubber bubble tiled section of flooring surrounding the entrance to the travelator which was wet having recently been mopped, in circumstances where water from the mopping had been allowed to go onto the steel section leading to the travelator. As Sackville AJA (with whose reasons Barrett and Gleeson JJA agreed) noted (at [42]) the primary judge found that "there was a 'significant amount of water in the [Plaintiff's] path' and she picked up moisture on her shoes on her way to the travelator [resulting] in her slipping when the wet shoes came into contact with the moving metal surface of the travelator pallets". The cleaner said that "the rubber bubble section he had mopped was slippery": Glad Retail (at [43]). Furthermore, the primary judge concluded that the travelator (which was a moving walkway constructed with a gradient of 12 degrees horizontal at the upper limit of the permitted gradient specified in the relevant Australian Standard (Glad Retail (at [38])" was an "inherently dangerous device": Glad Retail (at [46]).

42 Here, the appellant slipped on a flat dry floor on non-slip tiles, just after walking on the non-slip tread of white bubble tiles at the top of the stairs. Before doing so, he had walked across a dry area of 1 - 3 metres in length after walking over a film of water which was the residue of mopping using non-slip detergent.

43 When the evidence is viewed as a whole, in my view McDonald's and Holistic discharged their evidential burden of establishing that they did not fail to take reasonable precautions to guard against the foreseeable risk of harm within the meaning of s 5B(1) of the Civil Liability Act. Accordingly they displaced any prima facie inference which might have been drawn from the appellant's evidence that they had breached their duty of care. The appellant's case on breach would have rendered McDonald's and Holistic the appellant's insurer.

44 In my view, the primary judge ought to have found that neither McDonald's nor Holistic breached their duty of care to the appellant and ought to have entered judgment in their favour on that basis.

45 Should I be wrong on this issue, I would agree with Barrett JA that, in any event, the appellant did not establish that the breach of duty his Honour has identified (at [107]) caused him to fall. On this contingency, I also agree with his Honour's reasons as to the role of Holistic, contributory negligence, the respective exposures of McDonald's and Holistic and damages. Further, on the same contingency, I agree with his Honour's reasons for allowing the cross-appeal in part and the consequential orders flowing from that conclusion..

46 BARRETT JA: This is an appeal from a decision of a judge of the District Court (Gibson DCJ) dismissing claims in negligence brought by the present appellant, as plaintiff, against two defendants: the occupier of premises on which he sustained injury (the present first respondent, "McDonald's") and the insurer of a company (subsequently deregistered) that provided cleaning services at those premises. The insurer ("CGU") is the second respondent. The now non-existent cleaning company is referred to as "Holistic". It was (and is) accepted that any cause of action maintainable against the deregistered company could be brought against CGU under s 601AG of the Corporations Act 2001 (Cth), as a public liability policy issued by CGU to Holistic was responsive to the claim by the appellant against Holistic.

47 The appellant was injured when he fell on stairs in the first respondent's premises at 600 George Street Sydney in the early hours of the morning of 4 June 2007. The appellant was a qualified chef. He and a companion, Mr Hodson, both restaurant employees, had gone to the McDonald's outlet after finishing work at Darlinghurst. The counter at which food could be bought was at the back of the McDonald's premises. Someone entering from the street had to ascend a flight of nine stairs within the premises in order to reach the service counter at the rear. The appellant and his companion walked up the stairs and approached the counter but turned back without buying anything. They retraced their steps towards the street door. The appellant fell and was injured. Cleaning of the floor by mopping had occurred a short time beforehand.

48 The primary judge held that neither McDonald's nor Holistic was liable in negligence. Questions of damages and contributory negligence and about indemnity and insurance therefore did not arise but were addressed by the judge.

49 A number of issues arise from the appellant's amended notice of appeal, CGU's notice of cross-appeal and notices of contention filed by both McDonald's and CGU.

50 The appellant's principal contentions in relation to liability are that the judge erred in failing to address questions of the scope and content of the duties of care owed by McDonald's and Holistic and breach of those duties. The appellant also says that findings of fact were erroneous or deficient - in particular as to the amount and position of water on the floor, the position of the appellant's foot and the state of the soles of his shoes and as to whether the appellant slipped or "mis-stepped". The correct findings, the appellant says, are that each of McDonald's and Holistic owed a duty to take reasonable care to avoid reasonably foreseeable risks of harm to customers entering the restaurant and that each duty had been breached by mopping of the floor, contrary to applicable protocols, in such a way as not to leave a dry passage over which customers could walk.

51 McDonald's position, as to liability to the appellant, is that there should have been a finding that a reasonable person in its position would not have taken any additional precautions against the risk of harm of slipping on the stairs. It says that the judge's findings on to duty of care and breach were sufficiently clear from her reasons and that, in any event, McDonald's discharged its duty of care because it exercised reasonable care in accordance with s 5B of the Civil Liability Act 2002 (NSW).

52 CGU says, in the first place, that the judge should have found that the mopping of the floor that had taken place shortly before the fall was not undertaken by Holistic (there was evidence regarding Holistic's cleaning activities and the timing of them and that staff of McDonald's sometimes mopped floors at other times). CGU further says that, if Holistic did attend to mopping of the floor at the relevant time, it did so in a manner that did not breach any duty of care.

53 Both McDonald's and CGU contend that, if there was breach of a duty of care in negligence, it was not causative of the appellant's injury.

54 As between McDonald's and CGU, there are questions about the provisions of the contract between McDonald's and Holistic and, in particular, an indemnity provision and a provision requiring Holistic to carry insurance covering McDonald's. CGU says that the judge should have found, in any event, that the policy under which it had insured Holistic did not respond to any liability of Holistic; also that the judge incorrectly found that legal costs incurred by McDonald's were covered by the insurance.

The need for findings on duty and breach

55 The primary judge did not make any explicit findings in relation to the nature and scope of the respective duties of care. Her Honour extracted various relevant provisions of the Civil Liability Act and quoted Mason P in Sakoua v Williams [2005] NSWCA 405; 64 NSWLR 588 at [26]. She did not comment on the authorities. She identified the risk that she must determine as "the risk of harm that a plaintiff might slip". There is no other indication in the judgment of what the judge understood the content of the applicable duties of care to be.

56 McDonald's submits that the judgment implicitly recognised that occupiers owe well-recognised duties of care that may be stated at a broad level of generality and that slipping cases are an exemplar of the type of case in which the issues of duty, breach and causation can be conflated.

57 That is a dangerous approach. While it may be possible to formulate a duty at a high degree of generality, "duties of care are not owed in the abstract" and "are obligations of a particular scope": Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 per Gummow J at [43]. As Kirby J stated in Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; 192 CLR 431 at [123], a "duty must be elaborated if it is to be of any practical guidance".

58 In Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 Kirby J, at [230], emphasised the interconnectedness of the elements of negligence. He did not, however, suggest that the various elements cannot, and should not, be analysed separately. On the contrary, some measure of analysis and subdivision is necessary. There can be no doubt that the various elements inform one another in a way that may make it necessary or convenient to deal with them together. That is not what happened here. The judge did not conflate the issues of duty, breach and causation. She dealt with the question of causation without dealing at all with duty of care and breach.

59 Questions of causation are governed by s 5D and s 5E of the Civil Liability Act which provide that a plaintiff bears of the onus of proving, on the balance of probabilities, that a respondent's negligent act or omission was a necessary condition of the harm for which the plaintiff seeks damages. In essence, causation is concerned with whether the harm the plaintiff has suffered is referable to the breach of the respondent's duty of care. It was not open to the judge (nor possible) to come to a conclusion regarding the causal relationship between the respondents' breach of duty and the harm of which the plaintiff complains without first making findings on both duty and breach.

The evidence of the appellant and Mr Hodson

60 The appellant gave evidence that he and his friend, Mr Hodson, finished work at a restaurant at Darlinghurst at which they were employed, had a drink together there, took a taxi to the restaurant owner's home at Redfern to deliver the keys to him and then skateboarded from Redfern to the City. They visited a Hungry Jack's store in George Street and then continued on to the McDonald's premises at 600 George Street between Liverpool and Bathurst Streets.

61 After entering those premises, they walked to the flight of nine stairs, ascended the stairs, stepped over a pile of rubbish that had been swept into a position about a metre beyond the top of the stairs and continued towards the counter at the rear. Finding no staff there, they retraced their steps in order to leave the premises. The appellant fell and injured his back.

62 The appellant noticed that cleaning was in progress as soon as he entered the premises. He saw that the floor beyond both a white bubble tiled area at the top of the stairs and the pile of rubbish was wet from recent mopping which, he said, produced a "cleaning chemical" smell like "strong bleach". The wetness from mopping was across the whole width of the floor. He referred to a "thin film" of water. The floor between the pile of rubbish and the top of the stairs was not wet.

63 The appellant said in the witness box that he was on the second or third step from the top, on his way down the stairs, when his right foot slipped from under him. When shown a photograph on which he had previously marked a different place (at the top of the stairs) as that at which he slipped, he said that his recollection in the witness box was faulty and that he had slipped at the top of the stairs. He acknowledged that the floor surface on which he lost his footing (whether at the top of the stairs or on the second or third stair from the top) was not wet. He surmised, however, that the sole of his shoe was wet from the floor on which he had walked to reach the stairs on his return journey. He had no actual awareness of wetness on his sole. There was no water on the stairs themselves or at the top of the stairs where the floor was bubble tiled.

64 The appellant did not see anyone in the store (apart from his companion). There were no customers and no staff. He saw one or more signs warning of wet floors near the counter when he reached it. There were no such signs near the stairs or the street entrance.

65 As he retraced his steps to leave the premises, the appellant walked across the wet area knowing it to be wet. There were handrails on the staircase but he did not use them. His right foot slipped from under him and he fell on to the stairs. He was holding his skateboard and talking with Mr Hodson at the time. Mr Hodson was behind him.

66 Mr Hodson's evidence differed in some respects from the appellant's. In the first place, he had a different recollection of the time at which they visited the premises. That is of significance to the issues concerning Holistic, a matter to which I shall return. Mr Hodson's recollection was that there were other customers in the restaurant, as well as staff, and that he and the appellant, after ascending the stairs, turned back before reaching the counter at the rear. Mr Hodson described the water on the floor as "a big mopping mess". Mr Hodson said that, having ascended the stairs and entered on to the wet floor, he and the appellant turned back without continuing on to the counter; and that it was the wet floor that caused them to retreat. Mr Hodson denied the presence of any signs warning of a wet floor. Mr Hodson's evidence was that the pile of rubbish that, as it were, divided the wet mopped area from the dry area adjacent to the top of the stairs was about two or three metres from the stairs.

The evidence of McDonald's staff

67 Mr Eassey was, at the relevant time, McDonald's operations manager responsible for several stores including the store at 600 George Street. He played a part in the recruitment of Holistic to provide cleaning services at the store from about February 2007. The time specified for cleaning was between 4am and 7am.

68 Mr Eassey observed cleaning by Holistic personnel on several occasions before the date of the appellant's fall. He saw that a "dry mop" was used, that is, a mop immersed in a bucket (containing water and chemical agent described by Mr Eassey as "slip resistant") and then put through a wringer attached to the top of the bucket. This did not leave large amounts of water on the floor. The "safety floor signs" were displayed. Mr Eassey had "no issues" with the way Holistic personnel cleaned the premises. All equipment was provided by McDonald's.

69 Cleaning also occurred, as needed, at times other than those during which Holistic personnel were working. On those occasions (usually made necessary because something was spilt or dropped), McDonald's staff used the dry mop process. In fact, cleaning by McDonald's personnel to deal with a particular spillage might occur during the time that Holistic was engaged in regular cleaning.

70 McDonald's had a "checklist" for procedures (or "protocols") to be followed by its own staff but not for contractors such as Holistic. This included an instruction as to mopping in sections.

71 Mr Eassey described the floor coverings. He referred to a "non-slip tread" installed at the top of the stairs. This was a strip of white bubble tiles. He also referred to the "non-slip tread", being a rubber and aluminium strip along the outer edge of each stair. The floor itself and the risers of the stairs were covered in what he described as "non-slip tiles".

72 Mr Eassey stated that about 150 McDonald's employees were attached to the particular store at the particular time. The store was open 24 hours a day and was obviously busier at some times than others. Fewer than 150 employees were on-site at any given time. At 4am or so there were typically five present.

73 Mr Shalen was a shift manager at the McDonald's store from 2003 and was involved in the selection of materials for the floor and stairs when renovations were undertaken in 2004. Tiles he described as grey "ceramic non-slip" were chosen for the floor and stair surfaces and the outer edges of the stairs were fitted with what he described as black and silver "abrasive nosing which is kind of a sandpaper kind of effect, very hard, and grips your shoes". He also referred to the white bubble tiled area.

74 Mr Shalen gave evidence of the standing instructions he had given to "Sam" of Holistic:

"Sam had to clean the - he had to clean the dining areas in four sections and moving on to the next section, he had to make sure that the sections are dry and - dry enough for the customers to walk on before moving into the next section. While he's doing the sections, there's always - which is the - the - the main foyer towards the counter, half of the foyers always - half of it is always dry for the customers to walk onto and they're safe to be used."

75 And further:

"Sam, you're supposed to use the red mop bucket procedure we have and you're supposed to use the chemicals we provide, which is portion-controlled. And those chemicals have a non-slip agent, which makes the floor much safer than like it's wet with water only."

. ..

"Sam, you're supposed to put a minimum of three signs - cleaning in progress signs in the restaurant. One at the entrance of the restaurant so the customers can see as they walk in, one at the middle of the restaurant or closer to where you are working so customers can actually see you working and the red mop bucket has a cleaning sign on it itself. And one towards the counter of the restaurant because the stairs coming up from downstairs was - leads to an internet café where customers could be downstairs already at the premises who would come up and see the place getting cleaned."

76 Mr Shalen said that he had, on occasion, walked on a floor freshly mopped according to McDonald's specification and "you can walk on it straight away after it's applied".

77 Mr Shalen had watched "Sam" and his staff work. He gave the following account:

"When Sam starts, he normally makes sure he starts off where there is less traffic, less customers. And before he starts he gets his cleaning - his tools ready and puts the signs up, which is the first thing - they all get the wet floor signs, the cleaning in progress signs up to make the, you know - safe, area safe for the customers to walk around."

The stairs

78 The evidence of Mr Eassey and Mr Shalen, supplemented by photographic evidence, establishes that the relevant staircase consisted of nine stairs.

79 Immediately at the top of the stairs there was a strip of white bubble tiles as described by both witnesses. It was about half a metre wide and so positioned that that someone approaching the top of the stairs could not fail to place a foot on it. Those tiles were, according to the McDonald's witnesses, designed to reduce the risk of slipping on approach to the stairs but their precise qualities in that regard were not the subject of evidence.

80 On the outer edges of the stairs were strips of rubber and aluminium which appear to be about 5cm wide and are obviously intended to reduce the risk of slipping. Again, there was no specific evidence of the qualities of the strips.

81 Three metal handrails were provided for persons using the staircase, one on each side and another in the centre.

Duty of care

82 McDonald's was under a duty to exercise reasonable care to prevent foreseeable and not insignificant risks of harm to persons coming on to the premises and that duty included the obligation to take precautions that a reasonable person in the circumstances would have taken by way of a response to the risk that a person may slip on the stairs: Civil Liability Act s 5B; Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479; Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264 at [50]. That duty subsisted, in the present case, in relation to premises visited by many people each day.

83 It was not in dispute that Holistic was contracted to undertake the cleaning of McDonald's premises. Holistic's activities unquestionably included the mopping of floors, but there is a question (to be considered presently) whether it was Holistic, as distinct from McDonald's staff, that had performed the particular mopping or procured it to be done. Holistic's duty under s 5B of the Civil Liability Act was to take precautions against foreseeable risks of harm to persons walking on the floor that a reasonable person would have taken.

Breach

84 In the District Court, the appellant submitted that precautions beyond those taken by both McDonald's and Holistic were required, having regard to s 5B. It was said that a reasonable person in the position of the person who mopped the floor would have mopped in sections; taken further measures to prevent persons from walking over the recently mopped sections of the floor (by cordoning off those areas or by closing the restaurant when cleaning was taking place); provided signs warning about the presence of water on the floor and the risks associated with this; and refrained from mopping with excessive amounts of water. McDonald's, as occupier, would have ensured that such precautions were taken and, if it was Holistic that undertook the mopping, Holistic would have taken such precautions.

85 In this Court, the appellant only pressed the submission that the relevant breach was the failure to mop the floor in sections.

86 McDonald's submitted that the precautions taken were sufficient for the purposes of s 5B, particularly since the appellant knew that the floor was wet. The precautions taken included the provision of non-slip tiles, non-slip strips on the stairs, non-slip tread at the top of the stairs (the white bubble tiles) and three handrails, use of non-slip detergent and the placing of warning signs. Like submissions were made by the second respondent regarding the position of Holistic.

87 The primary judge erred by not making any finding in relation to breach. It is necessary to examine the evidence in order to come to an appropriate conclusion. As no real questions of credit arise, this Court is able to undertake that task.

88 The starting point for determining whether a breach of a duty of care has occurred is s 5B of the Civil Liability Act which provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable and not insignificant. The risk that a person would slip on the wet floor or soon after walking through it was plainly foreseeable, in the sense that it was known or ought to have been known. Further, the risk was not insignificant because, although not likely to materialise, it was nevertheless not trivial: Fallas v Mourlas [2006] NSWCA 32; 65 NSWLR 418 at [18] per Ipp JA (with whom Tobias JA agreed). The elements contemplated by ss 5B(1)(a) and 5B(1)(b) were therefore present.

89 Remaining for consideration, therefore, is s 5B(1)(c) and the question whether a reasonable person in the position of McDonald's or Holistic would have taken precautions beyond those actually taken. That question is to be answered in the light of 5B(2) which provides:

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm."

90 It is also important to recall s 5C(b) of the of Civil Liability Act, which provides the following:

"the fact that a risk of harm could have been avoided by doing something in a different way does not in itself give rise to or affect liability for the way in which the thing was done".

91 In Cherry v Jaymardo Pty Ltd [1998] NSWCA 57, it was said (at [3]) that the mere fact of a fall on wet steps is not sufficient to establish that an occupier has been negligent. That case, which pre-dated the Civil Liability Act, turned on whether the primary judge was entitled to prefer the evidence of one expert over the evidence of another. The evidence on which the trial judge relied was that the steps met a particular Australian Standard of coefficient for dynamic friction when wet. This meant that the judge was entitled to conclude that the material used in the construction of the steps was not such as to render them slippery when wet. The court held that primary judge was entitled to prefer that evidence and that a failure to keep steps dry, without more, will not be sufficient to establish that an occupier has been negligent.

92 The appellant's primary submission in this case was that both McDonald's and Holistic breached the applicable duty of care by allowing the floor to be mopped across its whole width, thereby creating a situation in which persons could not access the food counter and exit the restaurant without getting their feet wet. As Cherry v Jaymardo Pty Ltd makes plain, it does not follow from the fact that the floor was wet that there was some precaution that the respondents did not take that a reasonable person in their position would have taken.

93 In Cherry v Jaymardo Pty Ltd, however, the steps were not wet as a result of cleaning or other activities deliberately undertaken on or near them. They were in the shower room or steam room of a gymnasium and provided means of movement from one room to the other. The environment was one in which wetness of the floor was, as it were, a by-product of the uses to which the areas were put.

94 Circumstances closer to those of the present case arose for consideration in Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 482. The plaintiff there slipped on the metal surface of a sloping travelator after walking across a part of the floor of a shopping centre that was being mopped. She knew that the floor over which she passed was wet and commented on the fact to the cleaner. Findings of negligence on the part of both the occupier and the cleaning contractor were upheld, as was a finding that the risk to which the plaintiff succumbed was not an obvious risk. The following observation of Sackville AJA (with whom the other members of the Court agreed) is apposite:

"[79] Once the position is reached that Mirvac did not direct Glad Cleaning to delay regular cleaning until after the Centre opened, I do not think that there is any difficulty in upholding the primary Judge's finding that Glad Cleaning was in breach of its duty to the Plaintiff by not conducting the regular cleaning of the rubber tiles before the Centre opened. In the absence of any direction from Mirvac, there was no impediment to cleaning the area before members of the public and employees of tenants arrived at the Centre.

[80] The risk of injury due to persons slipping on the moving travelator because of moisture attaching to their shoes was foreseeable . . . The risk was not insignificant, since a person falling on the travelator might well sustain serious injuries. The fact that there was a sign warning users to hold the handrails did not obviate the risk or render it insignificant. Despite the warning not everyone will hold the handrails (as was evident from the CCTV footage when someone used the travelator immediately after the accident without using the handrails).

[81] Even people taking care for their own safety may not grasp hold of handrails on a travelator as soon as they set foot on the moving pallets. In a shopping centre people will often be carrying packages in each hand that limit their ability to hold on to the handrail. Some may be unable to take the optimum measures for their own safety because of the need to look after children. Others, like the Plaintiff, may appreciate that they should grasp the handrail but defer doing so for a moment or two as they place their feet on the pallets. As this case demonstrates, a delay in grasping the handrail may be a contributing factor to a fall, but it is hardly an unexpected occurrence."

95 In the present case, the evidence of both the appellant and Mr Hodson was that the floor at the top of the stairs, behind the pile of rubble, was wet from mopping across the whole its width so that anyone walking to or from the counter at the back of the premises had no choice but to walk on wet floor. Mr Shalen gave evidence that McDonald's standing instructions or "protocols" required mopping in sections so that passage over a dry section was always possible. There was clear evidence that Holistic had been instructed to mop in this way. However, the evidence justified the finding that was made, that is, that the floor was wet across its whole width.

96 In this case, therefore, as in Glad Retail Cleaning Pty Ltd v Alvarenga, there was a foreseeable risk that the shoes worn by someone proceeding from the direction of the counter, who had no choice but to walk across the wet area to reach the stairs and the exit, might retain moisture when the person came to negotiate the stairs.

97 There was a simple precaution that would have prevented persons with wet feet having to negotiate the stairs or, for that matter, any other part of the floor surface. The floor could have been mopped in sections, with each wet section appropriately marked or cordoned so that pedestrians could avoid it and walk on an adjacent dry section. Precautions of that kind are, in the context of this case, the equivalent of the precaution in Glad Retail Cleaning Pty Ltd v Alvarenga of mopping only when the shopping centre was closed to the public.

Obvious risk?

98 The primary judge did deal with this question. She extracted ss 5F and 5H of the Civil Liability Act. Section 5H(1) reads as follows:

"A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff."

99 Section 5F provides:

"(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable."

100 The primary judge found (at [46]) that the appellant knew the floor was wet and potentially slippery "but still walked through it". This is, clearly enough, a reference to his proceeding over the wet floor in the direction of the counter at the rear of the premises. The judge also found that the appellant "elected to" step over the rubbish and proceed across a floor that was being cleaned, where the smell of cleaning fluid was pungent and where there was a "cone" warning that cleaning was in progress. He knew that it was potentially slippery and had seen the warning sign. Her Honour continued (at [47]):

"Where a person is walking from a wet area onto [sic] a dry surface, such as a stair, there is an obvious risk. This was a plaintiff who had been given all the information available to be given, namely that cleaning was in progress and it was part of the reason he turned around and left the restaurant".

101 The significance of the judge's reference to ss 5F and 5H and her characterisation of the risk as obvious is not clear. If a risk is "obvious" within the meaning of s 5F, there is no positive duty to warn of that risk. That is the effect of s 5H. However, in the present case the plaintiff was warned that the floor was wet and of the risks associated with this. He gave evidence to that effect. The existence of warning signs can be taken into account when determining whether a risk is obvious however this involves a certain circularity. See, for example, State of Queensland v Kelly [2014] QCA 27 where Fraser JA stated:

"[39] ... There appears to be no incongruity in taking into account a warning sign in deciding whether a particular risk is an "obvious risk" for the purpose of sections 14 and 19 [which are the equivalent sections in the Queensland Act]. In relation to section 15, however, it arguably involves circularity -a defendant does not owe a duty to a plaintiff to warn of a risk to the plaintiff which is obvious because the defendant has warned the plaintiff of that risk.

...

[41]...The significant question then is whether, in all of the circumstances, the signs effectively communicated the risk which materialised so as to make that risk obvious to a reasonable person in the respondent's position."

102 The appellant was sufficiently made aware of the fact that the floor was wet. He saw one or more warning signs. His awareness - and accordingly the content of what was "obvious" to him - were shaped by his having seen and understood the signs. But there is a question as to precisely which "risk" should be taken to have been obvious to him accordingly. It is pertinent to quote again from the judgment in Glad Retail Cleaning Pty Ltd v Alvarenga (at [64]-[66]):

"[64] The Plaintiff's circumstances at the time the accident occurred have to be taken into account. She appreciated that the rubber section was wet and that she had to proceed carefully because the floor was wet. She did in fact proceed carefully. She then had no choice but to use the travelator in order to reach the car park. A reasonable person in her position, in order to regard it as obvious that there was a particular risk associated with the lubricating effect of moisture on the underside of shoes coming in contact with the moving travelator pallets, would need to appreciate at least that:

an accumulation of moisture on shoes is capable of creating what the experts described as a 'tribological' effect;

the surface of the pallets was what the experts described as hydrophilic rather than hydrophobic;

the plaintiff had accumulated sufficient moisture on the undersides of her shoes to create the tribological effect when she came in contact with the moving pallet; and

the risk was exacerbated because of the travelator's degree of inclination.

[65] The Plaintiff carefully negotiated the section being mopped by the cleaner. In doing so, it is likely that she attempted to minimise the extent to which the undersides of her shoes became wet. There is no evidence to suggest that the Plaintiff's footwear was especially likely to accumulate moisture or that a reasonable person in her position would have expected that the extent of the accumulation of moisture was unusual.

[66] In these circumstances, I do not think that 'common sense' provides a sound basis for overturning the primary Judge's finding that the risk was not 'obvious' within the meaning of s 5F(1) of the CL Act."

103 In this case too, the appellant knew, when he turned back towards the street exit, that the floor on the approach to the stairs was wet. There is no reason to think that he did not conduct himself accordingly while his feet were on that part of the floor. And he knew that moisture would be imparted to the sole of his shoes by the wetness of the floor. Furthermore, he must be taken to have been aware, as a matter of general knowledge, of the possibility of the effect of water on one's shoes, that is, that on some surfaces, wet shoes are less secure than dry shoes (his shoes had rubber soles with a tread or grip).

104 For someone walking in the direction that the appellant was walking, the top of the stairs was between one and three metres beyond the end of the wet section of floor. The pile of rubbish was encountered at the end of the wet section. A dry space of about one to three metres lay between the rubbish and the top if the stairs. In covering that space, the appellant could not have placed each foot on the dry area more than once or twice.

105 Common knowledge would have told a reasonable person in the appellant's position that, in those circumstances, the soles of his shoes might still be wet when he began to descend the stairs. Common knowledge would also have told such a person that descending stairs while wearing shoes with wet soles involved a risk of slipping that was not encountered when descending stairs while wearing shoes with dry soles.

106 It follows, in my view, that if the risk to which the appellant succumbed was that of slipping because of wet soles, the risk was an obvious risk, even though the foregoing analysis does not correspond precisely with that made by the primary judge. But, in the present context, the only consequence, in terms of the defendants' liability, is that prescribed by s 5H(1) of the Civil Liability Act, that is, that McDonald's (and, if relevant, Holistic) did not owe the appellant a duty of care to warn of that risk. The finding of obvious risk is thus irrelevant to the breach of a duty of care consisting of failure to mop in sections or otherwise in a way ensuring that there was always available passage for pedestrians across a dry area.

Conclusion on duty and breach

107 Failure to ensure that mopping of the floor was carried out in such a way as to ensure the continued availability of a dry section for pedestrians by mopping in sections must, in my opinion, be regarded as a breach of the duty of care owed by McDonald's as occupier and, if it was Holistic that in fact undertook the particular cleaning activity, by Holistic as well. The judge should have so found.

Causation

108 The issue of causation therefore arises. Section 5D(1) of the Civil Liability Act is as follows:

"A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)."

109 In Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182, the effect of s 5D(1)(a) was stated thus:

"The determination of factual causation under s 5D(1)(a) is a statutory statement of the 'but for' test of causation: the plaintiff would not have suffered the particular harm but for the defendant's negligence.

...

Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W."

110 Section 5E provides:

"In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."

111 The effect of these provisions is that the appellant as plaintiff bore the onus of proving, on the balance of probabilities, that the negligence of McDonald's (and, if applicable, Holistic) was a necessary condition of the harm for which he claims damages - that is, that, but for the negligence, the appellant would not have slipped on the stairs.

112 In order to establish that the harm the appellant suffered was referrable to the negligence of McDonald's or Holistic, the appellant had to prove, on the balance of probabilities, two discrete, yet interrelated propositions: first, that there was water on the soles his shoes when he fell; and, secondly, that that presence of that water caused him to fall.

113 The primary judge rejected certain critical aspects of the evidence of the appellant and Mr Hodson. This led her Honour to conclude that the requisite elements of causation had not been made out. The appellant's claim failed accordingly. Her Honour found that the appellant had failed to discharge his onus of proving that negligence of McDonald's and Holistic was causally responsible for the damages he claimed for four reasons. First, her Honour found that evidence given by the appellant and Mr Hodson relating to the extent to which the appellant had walked across the floor and the amount of water on the floor had been substantially overstated. Secondly, her Honour did not accept the appellant's evidence regarding the extent of the mopping (that the floor had been mopped across its width). Thirdly, her Honour did not accept that the appellant had proved there was any water left on his shoe when he reached the steps. Fourthly, her Honour did not accept the appellant's evidence regarding the mechanics of his fall and, in particular, his evidence regarding the place at which he slipped.

114 The appellant says that these findings were erroneous. He further says that this Court should find that the primary judge erred as to the amount of water on the floor, the extent of the wet floor and the distance that was covered by the appellant after he left the mopped section of the floor and before he slipped on to the stairs, including from which step he fell.

115 The only persons who gave evidence of the event were the appellant and Mr Hodson. They gave broadly consistent evidence, but with areas of inconsistency referred to at [66] above. These included the quantity of water on the floor, the extent of the floor area that had been mopped and the distance between the mopped area and the top of the stairs. The judge reasoned that these inconsistencies meant that the appellant had failed to discharge his onus of proving on the balance of probabilities.

116 In my opinion, her Honour overstated the extent of inconsistencies within and between the appellant's evidence and that of Mr Hodson. But it is not necessary to find unreliability in her Honour's factual findings in order to dispose of the causation issue. Even if the proposition advanced by the appellant is taken at its highest (that there was excessive water on the floor, that the floor had been mopped across its whole width and that the appellant had only walked a short distance between the mopped area and the top the stairs), that was not sufficient to discharge the appellant's onus of proof.

117 The principle to be applied when determining whether an inference may be drawn when direct evidence is unavailable was stated by Dixon, Fullagar and Kitto JJ in Luxton v Vines [1952] HCA 19; 85 CLR 352 at 358:

"In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co Ltd v Astley (1911) AC 674, at p 687. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn (1911) AC, at p 678."

118 Further, in Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 305, Dixon CJ quoted the following passage in the judgment of the High Court in Bradshaw v McEwans Pty Ltd (HCA, unreported, 27 April 1951):

"All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood."

119 The appellant was required to prove on the balance of probabilities that there was water on his shoes and that this caused him to slip. He did not say that he knew that his soles were wet; he merely surmised that they were. Even if it be assumed that there was water on his soles when he slipped on the particular surface, it does not follow, as a matter of "common experience", that it is more probable than not that he slipped by reason of the wetness of his shoes. The appellant submitted that it was more probable that, if his shoes were wet, he slipped because of the water on them rather than for any other reason. But there is nothing in common experience that tells us that someone with wet shoes who traverses a floor having the particular characteristics of the McDonald's floor is more likely to slip because of water on their shoes than for any other reason, such as inattention (because engaged in conversation or for any other reason), excessive speed or failing to take advantage of a handrail. People wearing dry shoes walk on wet stairs every day and do not slip. People wearing wet shoes walk on dry stairs every day and do not slip. People wearing dry shoes slip on dry stairs every day. And, as Heydon JA observed in Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [32], stairs are, in any event, "inherently, but obviously, dangerous".

120 The appellant, having walked through a wet area of the floor, stepped back over the pile of rubbish and then traversed either about one metre or about two to three metres of dry surface which included the white bubble tiled area at the top of the stairs. He lost his footing either at the top of the stairs (where the white bubble tiles were installed) or on the second or third stair of the nine stairs equipped with handrails which had slip preventing strips along their outer edges. The McDonald's employees who gave evidence referred to non-slip qualities of the floor tiles themselves, the white bubble tiles and the strips on the edges of the stairs. Mr Shalen, who was involved in the renovation of the premises some three years earlier, gave evidence that the particular flooring materials had been chosen because of their slip-resistant qualities.

121 It was for the appellant to prove that water on his shoes, if present, would have caused, on the particular floor surfaces, slipping that would not have occurred if no water had been present. The task of proof was facilitated, if at all, only by s 144 of the Evidence Act 1995 (NSW) which, as the High Court recognised in Gattellaro v Westpac Banking Corporation [2004] HCA 6; 78 ALJR 394 at [17], dispenses with the need for proof only as to matters which are "common knowledge". The need to prove the effects of wetness on one's soles when traversing flooring materials of the particular kinds would therefore be avoided if those effects were "common knowledge". It cannot be said that "common knowledge" provides an answer to the question whether a person wearing shoes of the particular kind the appellant was wearing is more likely to slip on flooring materials of the particular kinds within the McDonald's premises when the soles of the shoes are wet than when they are dry.

122 The appellant did not call any evidence from persons qualified to express an opinion on the issue of slip resistance of the particular surfaces and the effect that wetness on soles might be expected to have had: compare the plaintiffs in, for example, Cherry v Jaymardo Pty Ltd (above), Glad Retail Cleaning Pty Ltd v Alvarenga (above) and Riley v The Owners - Strata Plan 73817 [2012] NSWCA 410. Nor did the appellant call any expert evidence as to the likely state of a sole of the kind he was wearing after it had traversed a wet area and then a dry area of between one and three metres consisting of the particular surface in fact installed at the top of the stairs. He thus chose to leave an evidentiary vacuum on the issue of, first, the extent to which soles of the particular kind, having encountered wetness on the floor surface, were likely still to be wet at the time of his fall and, second, the propensity of soles of the particular kind, if wet, to cause slipping to a greater degree than if dry when traversing surfaces of the particular kinds.

123 Even taken at its highest, the appellant's evidence cannot support the inference that he asks this court to draw. The appellant's submissions on causation must fail accordingly.

124 The judge found that the appellant fell because of "inattention or misstep" while talking to his companion, holding his skateboard and not holding on to the handrail. This finding as to causation is, in reality, speculation. There was, of course, no need for the judge to speculate as to cause. Her task was to decide whether the appellant had proved that the effects of the breach of duty (that is, the effects of mopping of the floor in a way that made walking on the wet area unavoidable) were causative of the fall. On the evidence the appellant chose to present, any such conclusion would have been as speculative as that her Honour in fact expressed. The judge did not err by failing to find that the appellant's foot slipped by reason of a residue of water and cleaning agent on the sole of his shoe.

Conclusions on liability

125 It follows from what I have said about lack of proof of causation that neither McDonald's nor Holistic incurred liability for any breach of duty of care on its part.

126 I have already said that McDonald's, as occupier, owed the appellant a duty of care and that Holistic (if it had performed the mopping) also owed him such a duty; and that there was a breach of duty. The conclusion that causation was not established means that the result on liability reached by the primary judge was correct, even though the process by which her Honour arrived at that result was not.

127 In light of this outcome, it is unnecessary that this Court decide the other matters canvassed on appeal. I nevertheless deal with them for the sake of completeness. In doing so, I proceed on the hypothesis that the appellant proved that breach of duty on the part of McDonald's and, if relevant, Holistic caused the injury he suffered.

Role of Holistic

128 In proceeding on the hypothesis just mentioned, I must first address the question whether the cleaning activity in question had been carried out by Holistic or by McDonald's staff.

129 The evidence showed (and was not in dispute) that Holistic personnel attended between 4am and 7am daily. It was not suggested that the task took three hours. The inference is that they started at 4am or later and finished not later than 7am. This was to fit in with the least busy time of the day.

130 The appellant and Mr Hodson gave different accounts of timing. They agreed that they left the restaurant at which they were employed after having a drink there, went to Redfern by taxi and skateboarded from there to the City, stopping off at Hungry Jack's in George Street and then continuing on to McDonald's at 600 George Street. The appellant did not refer to the time at which they reached McDonald's or, for that matter, the time they left their place of employment. He did, however, say that he fell at about 4.30am. Mr Hodson gave evidence that they finished work at about 11.30pm or midnight, remained at the workplace for "probably 20, 30 minutes" and arrived at McDonald's "about 2.30ish". He accepted that the incident occurred, at the latest, at about 3.30am.

131 On Mr Hodson's estimates, the time between leaving the place of employment and arriving at McDonald's via Redfern and Hungry Jack's was of the order of two to two and a half hours. If that is accurate, the appellant's account involved leaving the place of employment - a restaurant - at between 2am and 2.30am.

132 The primary judge accepted that the incident occurred at about 4.30am. Influential in her Honour's decision was a letter sent by the appellant's solicitors to McDonald's only about two weeks after the event. The letter said that the incident had occurred at 4.30am. Her Honour obviously regarded the almost contemporaneous account in that letter (which was consistent with the evidence of the appellant at trial) as more reliable than the evidence of Mr Hodson given more than four years later.

133 The judge's finding as to time was open on the evidence. That being so, the incident must be taken to have occurred within the period 4am to 7am during some part of which Holistic carried out the daily cleaning routine. The fact that the mopping in question was across the whole width of the floor was sufficient to ground a finding that it had been undertaken by Holistic. This is because cleaning to which McDonald's staff attended periodically was in response to a particular need caused by spillage or the like and would have involved some isolated area, not the whole floor.

134 The judge's conclusion that Holistic carried out the relevant mopping was open on the evidence. Had the appellant proved that the wetness of the floor caused his fall, each of McDonald's and Holistic would have been liable to him for the damage he thereby suffered.

Contributory negligence

135 Had McDonald's and Holistic been liable in damages, a question would have arisen as to the appellant's contributory negligence. The primary judge found that contributory negligence would have been 100% - in effect that it would have precluded any recovery at all from the occupier and the cleaning contractor, assuming them to have been liable in negligence.

136 The question of contributory negligence falls to be determined by reference to s 5R of the Civil Liability Act:

Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

137 In this case, there can be no doubt that the appellant knew that the floor was wet. He had observed that the floor was wet and had seen warning signs. He was aware of the risks associated with a wet floor. He gave evidence to that effect. Although armed with this knowledge, he proceeded to the staircase and down the stairs whilst talking to his friend and without holding on to any of the three handrails that had been provided. A reasonable person in the position of the defendant, who knew that the floor was wet and of the risk that that might entail, would have taken greater precautions against the risk of harm by slipping and falling. If the appellant had exercised reasonable care in the circumstances by treading carefully and deliberately, it is highly likely that he would not have slipped and fallen.

138 I am of the opinion that, on the basis of the relative culpability of the parties, the appellant was 70% contributorily negligent for the injuries that he suffered.

The position as between McDonald's and Holistic

139 The finding that the incident occurred after mopping of the floor had been undertaken by Holistic makes it necessary to consider the respective exposures of McDonald's and Holistic if, as hypothesised, each was liable in damages to the appellant.

140 McDonald's contended that, because the mopping was undertaken by Holistic, it was entitled to indemnity from Holistic on the basis of either or both of an implied contractual term of due care and skill (Oxley County Council v MacDonald [1999] NSWCA 126 at [60] - [68]) or a provision of the written contract between the parties.

141 The contract between McDonald's and Holistic was in a letter dated 1 March 2007 written by McDonald's to Holistic and acknowledged and accepted by Holistic under the hand of its director, Mr Saman. The agreement refers to the supply of "Products" by Holistic to McDonalds. CGU says that the reference to "Products" is inapt to cover cleaning services. But that, plainly enough, was the intention.

142 Clause 1.6 was in these terms:

"All suppliers assume responsibility for and agree to stand behind their Products. As such, you must agree to indemnify McDonald's, and its franchisees, from any and all claims, damages, expenses and lawsuits caused by your Products, including without limitation, patent infringement claims and Product replacements required by McDonald's. All suppliers assume responsibilities for the acts or omissions of any subcontractors or agents that they utilise or authorise to manufacture, service or repair their products."

143 McDonald's contends that, with "your Products" understood as referring to cleaning services provided by Holistic, the second sentence of clause 1.6 operates as an indemnity by Holistic for damages and expenses incurred by McDonald's "caused by" the provision of those services by Holistic. Furthermore, it is argued, liability visited upon McDonald's as occupier, by reason of mopping by Holistic in such a way that no passage over dry floor was kept available, was "caused by" the cleaning service supplied by Holistic.

144 Holistic challenges that construction. It says that the phrase "caused by" denotes a direct causal connection and is to be contrasted with, say, "arising out of" or "in connection with". Because McDonald's was, on the operative hypothesis, in breach of a separate and independent duty owed by it as occupier and its liability flowed from that circumstance, the situation was not one in which the liability was "caused by" the mopping activities of Holistic.

145 The primary judge rejected this submission. She was right to do so. The only breach of occupier's duty of which McDonald's was guilty, on the operative hypothesis, concerned the presence of water on the floor so that no passage over any dry area was maintained. On the findings as to timing, it was Holistic that caused the floor to be in that state. McDonald's, by act or default of its own, did not cause the floor to be wet. Liability accruing to McDonald's because of the state of the floor was "caused by" the provision of cleaning services by Holistic. The clause 1.6 indemnity therefore operated to the benefit of McDonald's.

146 It is necessary to consider next clause 1.7 of the contract between McDonald's and Holistic:

"Suppliers must maintain comprehensive general/public liability insurance in an amount approved by McDonald's and with a carrier having a financial rating approved by McDonald's, listing McDonald's including McDonald's Australia Limited and McDonald's Properties Australia Pty Limited and its franchisees as additional named insured, and provide McDonald's, upon request, with proof of such insurance."

147 Holistic effected public liability insurance with CGU under a policy for the period 28 February 2007 to 28 February 2008. Among exclusions in the policy was the following:

"We will not indemnity [sic] you against liability arising out of work undertaken on your behalf by any contractor or sub-contractor."

148 Mr Saman gave evidence that cleaning work at the McDonald's premises was in fact undertaken by a subcontractor, Towlon Pty Ltd. That, if it were the case, would have attracted the operation of the policy exclusion. However, the primary judge had before her evidence of a telephone conversation between Mr Saman and an officer of CGU (Ms Baker) in which it was made clear to Mr Saman that the policy was to cover the cleaning activities of subcontractors for up to $10,000.

149 In the end, the primary judge did not decide whether the subcontractor exclusion applied. This was because she was not satisfied that it had been proved by CGU that the cleaning work on the day in question was performed by Towlon or any other subcontractor.

150 The only evidence her Honour had on this was that of Mr Saman. She said of Mr Saman that his evidence became "increasingly vague" in cross-examination - an observation borne out by a long passage of cross-examination set out in the judgment. The judge was also influenced by the absence of documents such as rosters and bank records.

151 Because of the lack of finding of involvement of any subcontractor, the policy exclusion was irrelevant and the policy was held to cover liability of Holistic towards the appellant.

152 From there, the judge moved to a different issue to which clause 5.2 of the policy was relevant. That clause (in which "We" refers to CGU and "You" refers to Holistic) is as follows:

"Provided that they observe, fulfil and are subject to the definitions, terms, conditions and exclusions of this Section, We will also indemnify, as though they were You, the following that are not named in the Schedule.

(a) Any party with whom You have entered into an agreement for the purpose of Your Business, but only for Occurrences for which You would be liable in the absence of the agreement and only to the extent that the agreement requires You to indemnify that party in relation to that Occurrence."

153 The primary judge held that this provision of the policy effected by Holistic with CGU provided "cover directly to McDonald's as if it were a party to the contract of insurance". Part and parcel of this finding was a conclusion that the agreement between Holistic and McDonald's imposed on Holistic a requirement to indemnify McDonald's for the kind of liability to which the clause in the policy referred.

154 CGU challenges that conclusion. It accepts that McDonald's is a party with which Holistic entered into an agreement for the purposes of Holistic's business (being the letter agreement of 1 March 2007). The focus is then upon the particular "Occurrence" - if McDonald's is to have, in respect of its hypothesised liability to the appellant, the benefit of Holistic's insurance "as though" McDonald's were Holistic, it is necessary to find that the matter in respect of which McDonald's seeks to claim that benefit is an "Occurrence" for which Holistic would be liable in the absence of the agreement between McDonald's and Holistic. If the "Occurrence" is of that kind, indemnity by CGU extends to McDonald's but "only to the extent that" the agreement between McDonald's and Holistic requires Holistic to indemnify McDonald's "in relation to that Occurrence".

155 The policy contains a definition of "Occurrence" as follows:

"Occurrence means:

Personal Injury or Damage to Property that:

1. is neither intended nor expected by You and would not be expected from the standpoint of a reasonable person in Your position;

2. is caused by an Event; and

3. occurs:

(a) within the Geographical Limits; and

(b) during the Period of Insurance."

156 "Event", according to another definition, includes "a single incident".

157 The relevant "Occurrence", for present purposes, was the personal injury suffered by the appellant when he slipped and fell at the McDonald's premises. The policy provision under consideration therefore raises two questions: first, whether that injury was one for which Holistic would be liable in the absence of its agreement with McDonald's and, second, whether (and, if so, to what extent) the agreement between McDonald's and Holistic required Holistic to indemnify McDonald's in relation to the injury.

158 As to the first matter, the circumstances that Holistic performed the mopping and incurred a duty of care to the appellant which, for present purposes, it is assumed it breached thereby causing the appellant injury, means that the first question must be answered in the affirmative. The injury was, on that footing, one for which Holistic was liable apart from its agreement with McDonald's. As to the second question, the conclusion regarding clause 1.6 of the agreement between McDonald's and Holistic (see [145] above) means that Holistic was required by that agreement to indemnify McDonald's in full in relation to the appellant's injury.

159 McDonald's was therefore entitled to indemnity by CGU under clause 5.2 of the Holistic policy for such liability as it had for the injury sustained by the appellant.

Legal costs

160 McDonald's submitted at trial, that, even in the absence of liability in damages on its part for the appellant's injury, the indemnity under Holistic's insurance with CGU protected it for its legal costs incurred. The primary judge so found, but without any explicit statement of the reasoning. CGU challenges that finding by its cross-appeal.

161 That aspect of the cross-appeal raises questions about the combined operation of clause 5.2 of the policy and clause 5.1 to which reference has so far not been made. Clause 5.1 refers to certain cases (including a claim of public liability "made against You ... for which indemnity ... would be available under this Section if such a claim were to succeed") and says, "We will pay Your Legal Costs". "You", of course, is Holistic but McDonald's argued (and the judge apparently accepted) that clause 5.2 operated in such a way that the indemnity it provided for McDonald's extended to McDonald's legal costs.

162 This analysis breaks down (as does any attempt to bring McDonald's costs within clause 5.2 directly, that is, without the aid of clause 5.1) because the clause 5.2 indemnity is only for "Occurrences", as defined (see [154] above); and legal costs, not being, in terms of the definition, "Personal Injury or Damage to Property", are not an "Occurrence".

163 The primary judge was, in my opinion, in error when she decided that the CGU policy required CGU to indemnify McDonald's for its legal costs in any event. That, coupled with the circumstances that there was no substantive liability for personal injury or property damages ("Occurrence") upon which clause 5.2 could operate, means that the cross-claim brought by McDonald's against CGU should have been dismissed and CGU's cross-appeal should be allowed to the extent of setting aside the orders concerning McDonald's costs that the judge made against CGU.

Damages

164 The primary judge set out brief findings on quantum of damages, noting that the appellant's claims totalled $320,480 while a schedule of damages provided by McDonald's totalled $56,530. Her Honour stated that, if damages had been awarded, they would have been $99,980 made up as follows:

Non-economic loss	$18,000
Past out-of-pockets	3,330
Future out-of-pockets	3,000
Past economic loss	47,650
Future economic loss	25,000
Loss of superannuation	3,000
Care/Domestic/Home Assistance	Nil

165 Three grounds of appeal are pressed in respect of the primary judge's assessment of damages:

Ground 11: That the primary judge erred in her assessment of future loss of earning capacity in:

(a) failing to consider the loss being and likely to be occasioned to the appellant by reason of his inability to work the additional hours that would otherwise be available to him over and above the 'full time' 40 hours per week he was found to be capable of working, consistent with Dr Barrett's assessment of his maximum capacity; and

(b) failing to have any or any adequate regard for the findings that she made in relation to past loss of earning capacity, the possibility of surgery and the likelihood of retirement and the weight of the evidence.

Ground 13: That the primary judge erred in making inadequate allowance for the non-economic loss in that her Honour's assessment was so low as to be demonstrative of error having regard to the evidence and her Honour's findings, whether express or implicit.

Ground 14: That the primary judge erred in her assessment of future out-of-pocket expenses in that she made allowance on the basis of a 25% likelihood of future prosthetic disc replacement surgery, as erroneously understood by the judge to have been prognosticated by Dr Searle, whereas Dr Searle had described that likelihood as "more probable than not".

Ground 11

166 Counsel for the appellant referred to various aspects of the appellant's evidence concerning his ability to work as a chef or in other capacities in the hospitality industry. It was said that, whereas he had been able to work 50 hours a week before his fall, the effects of the fall made him capable of working only 40 hours per week; also that he should avoid activities involving bending, twisting or sudden movements and that he should not lift more than 12 kg. One medical witness (Dr Barrett) said that the appellant was capable of working as a chef or bar person/barista within these limits.

167 The appellant argues in this Court that the foregoing evidence was inconsistent with the judge's finding that the appellant was able to return to full time work as a chef. But, as the respondents note, another medical witness (Dr Burke) said that the appellant was "fit for work without restrictions" and yet another (Dr O'Neill) said he was "fit to work".

168 The respondents say, and I accept, that the judge was entitled to rely on the evidence of Dr Burke and Dr O'Neill and that, in any event, there was no basis for finding that the restrictions to which Dr Barrett referred would inhibit efficiency as a chef, bar person or barista.

Ground 13

169 The judge assessed non-economic loss as 20% of a most extreme case. Counsel for the appellant submitted that this fails to accord due significance to a number of factors. In particular, the appellant was, before his fall, a hard-working and active man aged 29 who enjoyed snowboarding and skateboarding and was looking forward to a career as a chef. The primary judge accepted that he suffered fractures and lumbar disc protrusions as a result of his fall.

170 Counsel for the appellant referred also to the judge's failure to refer to the appellant's own evidence of pain, the evidence of his flatmate, Mr Stephenson, of a dramatic change in the appellant following the accident (including the appearance of being in "significant pain") and evidence of the friend and former employer, Mr Cameron, to changes he had noticed in someone who had been "a very active individual", including weight gain. Counsel for the appellant pointed out that the judge allowed only a "modest" amount for future out-of-pocket expenses for possible prosthetic disc replacement surgery on the basis hat the possibility was only 25% whereas Dr Searle rated it more than 50%.

171 The appellant submitted in this Court that there should have been an allowance reflecting 30% of a most extreme case.

172 The question on appeal is that identified by Handley JA in Dell v Dalton (1991) 23 NSWLR 528 at 534, that is, whether the conclusion of the trial judge ought to be disturbed according to the ordinary principles governing appellate review of awards of damages for personal injuries. Those principles were identified by members of the High Court in Wilson v Peisley (1976) 50 ALJR 207. It is sufficient to refer to the judgment of Mason J who, after noting that the assessment of damages is "more like an exercise of discretion than an ordinary act of decision", said (at 214):

"The settled rule, then, is that an appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered."

173 In this case, as the respondents submit, the primary judge formed an impression based on having heard and read all the evidence. The judgment makes it plain that, while her Honour may not have made express reference to certain aspects in her judgment, she had considered the evidence of the witnesses concerned, both lay and medical.

174 The matters to which counsel for the appellant refers do not justify appellate intervention to disturb the result of what was an evaluative exercise.

Ground 14

175 This matter has already been mentioned briefly in the discussion of Ground 13.

176 The appellant acknowledges that Dr Searle initially stated the relevant possibility to be "a 25% possibility" but notes that that estimate was later modified to "more probable than not", with the likely time frame "within 10 years". However, the appellant says, the judge recognised only the revised time frame and did not take into account the increased possibility.

177 As counsel for the respondents notes, however, Dr Searle gave no reasons for the change in his opinion and the appellant, in turn, did not identify what sum higher than the $3,000 allowed the judge should have embraced.

178 There is no evidentiary basis for interfering with this aspect of the assessment of damages.

Conclusions

179 Because the appellant failed to prove that the negligence of either McDonald's or Holistic was causative of the injury he suffered, his appeal must be dismissed. The other issues raised by the notice of appeal have been dealt with merely for the sake of completeness and do not affect that result. As stated at [163] above, CGU's cross-appeal should be allowed in part.

180 I propose orders as follows:

1. Appeal dismissed.

2. That the appellant pay the respondents' costs of the appeal.

3. Cross-appeal allowed in part.

4. Set aside orders 3 and 5 made by the District Court on 13 December 2012 and order in lieu thereof that the second cross-claim be dismissed.

5. That the first respondent (second cross-respondent) pay the costs of the second respondent (cross-appellant) of the cross-appeal

181 WARD JA: I agree with Barrett JA that the appeal should be dismissed for the reasons his Honour gives.

182 I note that McColl JA, while agreeing with the orders proposed by his Honour, is of the view that the respondents discharged their evidential burden of establishing that they did not fail to take reasonable precautions to guard against the foreseeable risk of harm ([43]). Her Honour concluded that the appellant failed to establish that McDonald's and Holistic had failed to take the precautions a reasonable person in their position would take by way of response to the reasonably foreseeable risk of harm.

183 Essentially, the difference between their Honours as to whether the appellant established a breach of the duty of care is as to the issue whether, on the assumption that persons in the position of the appellant would exercise reasonable care for their own safety, a reasonable person would have taken precautions beyond those that were in fact taken by McDonald's/Holistic. The appellant's case was that the breach lay in failing to take the precaution of mopping the floor by sections.

184 The relevant risk was that explained by Barrett JA at [96], to which I would add the risk that the soles of the shoes of someone crossing the mopped floor might retain not just moisture but also (or instead) some residue from the non-slip detergent.

185 I agree with Barrett JA that mopping the floor in sections was a simple precaution that would have prevented any such risk. It was not suggested that this was an onerous precaution to take. It was in fact the direction given by McDonald's to its own staff as to the protocol in relation to mopping of floors.

186 I am not convinced that McDonald's and Holistic were entitled to assume that a person in the appellant's position would appreciate the possibility that if he or she walked across the mopped floor there could be some moisture or residue of non-slip detergent on the soles of his or her shoes and would take the opportunity to wipe that off the shoes before reaching the top of the stairs, so as to obviate the need for any further precaution to be taken by them.

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Decision last updated: 26 May 2014