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A Lebanese electrician who acquired an addiction to narcotic pain medication whilst wrongly detained at Villawood detention centre claimed to have suffered permanent injuries from a shopping centre fall that he was no longer able to work.
Abdul Raad’s June 2011 public holiday expedition to the Busby Shopping Village was to pick up meat from the butcher.
He parked undercover and as it was raining, running from the edge of the covered parking area to a tiled area at the rear entrance.
After taking a few steps on the uncovered tiles, slipped and landed heavily on his back.
The centre’s insurer denied liability claiming that the wet tiles constituted an “obvious risk” for which the centre operator should be protected by civil liability immunity.
It also contended that Raad’s running and dilapidated footwear contributed to the accident and the absence of any other falls in the 18-month prior period meant the risk was “insignificant”.
Not so latter point, ruled Justice Brian Davies in the New South Wales Supreme Court. The statistic was meaningless in the absence of evidence as to the frequency of pedestrian traffic and the number of wet days in the period.
An engineering expert called by Raad gave evidence that the older tiles at the point where the slip occurred were far more slippery than those that had been more recently laid to replace some that were damaged.
He also noted that the surface had been laid with “minimal crossfall” meaning that water ponded on the surface rather than drained away.
A reasonable response to such risk was for the regular application of an anti-slip coating or the replacement of the tiles with those possessing a “pronounced surface texture”.
Failure to take those measures represented a breach of duty for which the shopping centre owner was liable.
On the other hand a warning sign would have been of little point because firstly “the risk of slipping on wet tiles was an obvious one” and secondly because he was unable to read English “would have been no use to him at all”.
But did running into the wet tiled area constitute a contributory fault on the part of the shopper?
The experts agreed that the poor state of his footwear would only be relevant had tiles been treated with a nonslip surface.
Having taken several steps on the wet tiles before being upended – compared to one at most for “a reasonably prudent person” who would have then “adjusted their pace” – was contributorily negligent for which 10% fault was attributed.
Raad’s evidence as to the events, his relationships and his symptoms was so confused it “bordered on the bizarre”.
This included evidence from his partner about him “screaming in bed at night” and having to wear the clothes even in hot weather because he constantly felt cold. That claim was disproved by video surveillance which also cast doubt on other symptoms, in particular, his claimed inability to sit, stand, bend etc.
Damages were assessed that $84k which after the 10% contributory negligence to were reduced to $75.5k
Raad v VM & KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust [2016] NSWSC 888
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